Apart from the original and appellate jurisdictions, the Supreme Court of Pakistan is empowered under Article 186 of the Constitution to advice the president on any question asked in public importance. The Article was invoked when the President on the proposal of the Premier asked the Supreme Court on the question of open ballot and show of hands for the upcoming Senate elections, to be held on 3rd March. The President asked the Supreme Court to amend the Election Act,2017 and not article 226 of the constitution. Currently, section 122 of the Election Act 2017 provides for the secret ballot in Senate elections.
Article 226 of the constitution clearly circumscribes the open ballot other than the election to the office of Prime Minister and Chief Minister. The current government to bypass the constitutional amendment has asked the Supreme Court to advice the government in the matter. The supreme court, however formed a five member judges’ bench for the reference. Formerly, the election defined in the constitution has been interpreted differently by various courts. Some does not consider the election of the senate as the Constitutional election but rather a Statutory election under the Election Act. The earlier judgment of the Balochistan High Court in the case of Attaullah vs government of Pakistan (PLD 2014 Balochistan 206) held that the local government elections were the polls under Article 226 of the Constitution and must be held by secret ballot. But later a three-member Supreme Court held that the local government elections are under the umbrella of the provincial legislature, hence they can formulate their rules and the elections can be held through secret ballot or through show of hands. From the plain and bare reading of Articles 59, 223, and 224 of the Constitution, when read together, leave no doubt that Senate polls are “elections under the constitution”.
The only reason behind the reference is the bypassing of the legal procedure in the legislature. The current government cannot amend the constitution due to its low proportion in the senate specially. The Imran Khan led PTI government has more provincial seats in KP and Punjab, but the fear of horse trading is not a rocket science in a country like Pakistan. It is expected that the reference may be given answer in negative as the elections are under the constitution, and no one except the legislature can amend the Constitution.
Author Shah Sawar Younas Khan, Student of Law at Abdul Wali Khan University, Mardan