2021 PLD 480 SUPREME-COURT

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VS arts. 186, 218(3), 220, 222 & 226 & Fourth Sched., Pt. I, Entry 41---Elections act (XXXIII of 2017), S. 122---Reference by the President under art. 186 of the Constitution---Senate elections---Voting procedure---Secrecy of ballot---Question asked in the Reference was whether the condition of 'secret ballot' referred to in art.226 of the Constitution, was applicable only for the elections held 'under' the Constitution such as the election to the office of President, Speaker and Deputy Speaker of National assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial assemblies and not to other elections such as the election for the members of the Senate held under the Elections act, 2017, enacted pursuant to art.222 read with Entry 41, Pt. I, Fourth Sched. to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Elections act, 2017---[Per Gulzar ahmed, CJ., Mushir alam, Umar ata Bandial and Ijaz ul ahsan, JJ [Majority view]: Secrecy of ballot was not absolute and therefore, was not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election---In terms of art.218(3) of the Constitution it was the duty of the Election Commission to ensure that the election was conducted honestly, justly, fairly and in accordance with law and that corrupt practices were guarded against---For fulfilling said solemn constitutional duty the Election Commission was required to take all available measures including utilizing technologies]---[Per Yahya afridi, J. [Minority view]: Opinion being sought in the present Reference was not a question of law within the contemplation of art.186 of the Constitution, thus, it was to be returned unanswered]---answer (short opinion) to the Reference provided by the Supreme Court recorded.

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