CONCISE STATEMENT ON BEHALF OF THE ELECTION COMMISSION OF PAKISTAN.

ISLAMABAD -- The question of the law framed in the Reference and paragraphs 10 and 11 of the Reference are reproduced as under:

'Whether the condition of 'secret ballot' referred to in Article 226 of the Constitution of Islamic Republic of Pakistan is applicable only for the elections held under the constitution such as the election to the office of President of Pakistan, 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 of Pakistan held under the Elections Act 2017 enacted pursuant to Article 222 read with Entry 41, part-I, 4th Schedule to the Constitution which may be held by way of secret or open ballot, as may be provided for in the Elections Act-2017?'

'10. That the Federal Cabinet has been advised that Article 226 of the Constitution, as it presently stands, restricts secret ballot for only those elections which are held 'under' the Constitution. These includes elections for the Office ofPresident of Pakistan held under Article 41(3) of the Constitution read with Second Schedule thereto, the election of Speakers and Deputy Speakers of National and Provincial Assemblies and election of Chairman and Deputy Chairman of Senate. This would have included the election of Prime Minister and Chief Ministers but for their specific exclusion by Article 226 itself.'

'11. That as against the aforementioned elections held under the Constitution itself, the elections for Parliament, Provincial Assemblies and local governments, though constituted under the Constitution, are held under the provisions of the Election Act, 2017, The Election Rules, 2017 and the respective local government laws enacted by the Provinces.'

1. Interpretation of Article 226

   1. Article 226 is reproduced below:

      '226. All elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.'

      [emphasis supplied]

   2. That the three highlighted phrases 'all', 'under the Constitution' and 'other than' are very important though the Reference rests primarily on the interpretation of the term 'under the Constitution', and suggests that an election which was not 'under the Constitution', could be conducted in a manner other than by 'secret ballot'.

      3.1 Word 'All' is all encompassing;

      '...The word 'all' is commonly understood, and when so used does not admit of an exception or exclusion not specified...'

      [CEDAR RAPIDS COM. SCH. DIST. V. CITY, Supreme Court of Iowa (13 December, 1960)]

      '...The word 'all,' standing alone means exactly what it imports; that is, nothing less than all...'

      [KNOX JEWELRY v. CINCINNATI INS. CO, Court of Appeals of Georgia (7 January, 1974)

      3.2 Interpretation of 'Under the Constitution'

      '...There can be no doubt that the phrase 'under the Act' is one that connotes in the appropriate context, not merely the provisions of the Act, but other statutory rules framed by the appropriate authority in accordance with the rule-making-power given by the Act which when framed, must be deemed to be part of the Act itself...'

      '...According to him the expression 'election held under this Act' in Subsection (5) of Section 1 would not include 'elections held in accordance with the rules framed under the Act'. He urged that the words 'under this Act' refer to the provisions contained in the Act itself and cannot refer to the provisions contained in the rules made under the Act. This argument however unduly narrows down the meaning of the word 'under' when used with reference to an Act. It is true that in ordinary language any action said to be done under an Act refers to action taken in exercise of the powers conferred by the provisions of the Act itself. But the words 'under an Act' are wide enough to embrace not only the provisions of the Act but also the rules, notifications etc. made under the provisions of the Act, unless there is anything repugnant in the subject or context.

      [see BishnuCharan Mukherjee v. State of Orissa AIR 1952 Orissa 11]

      Similar conclusion finds support from;

      PLD 1969 Lahore 1087: interpreting 'under the constitution' and 'under'

      AIR 1957 Calcutta 274: interpreting 'under the act'

      PTD 2014 Lahore 420: interpreting 'under the act'

      PLD 2006 Lah. 358: senate elections are 'under the constitution'

      2018 SCMR 1166: local government elections are 'under the constitution'

      Ordinary and natural meaning doctrine

   3. The most ordinary and natural meaning elucidated by Article 226 is that elections 'under the constitution' are those elections that are held by or under the authority of the Constitution. Article 226 provides only two exceptions i.e. election to the office of Prime Minister and Chief Minister (which on true construction refers to only one exception, the leader of the House). As per rules of statutory interpretation, when exceptions to a general rule have been specified in the rule, those are the only exceptions and no other exception can be implied or read into the provision.

      4.1 The following table shows the elections that find mention in the Constitution:

      Sr. No.

      Election to / Election of

      Constitutional Provision

   1. Office of the President

      Article 41(3)

   2. The National Assembly

      Article 51(6)

   3. Speaker, National Assembly

      Article 53(1)

   4. Deputy Speaker, National Assembly

      Article 53(1)

   5. Senate

      Article 59 (1) and (2)

   6. Chairman, Senate

      Article 60(1)

   7. Deputy Chairman, Senate

      Article 60(1)

   8. Members, Finance Committee

      National Assembly

      Article 88(2)

   9. Members, Finance Committee

      Senate

      Article 88(2)

   10. Prime Minister

       Article 91(3)

   11. Provincial Assemblies

       Article 106(3)

   12. Speaker, Provincial Assembly

       Article 108

   13. Deputy Speaker, Provincial Assembly

       Article 108

   14. Chief Minister

       Article 130(3)

   15. Local Government

       Article 140(A)

       4.2 That the establishment of the government at federal and provincial levels, establishment of the constituent houses, bodies, offices etc. is effectuated under the Constitution, and its authority is to be widely construed.

       4.3 Assigning the natural or ordinary meaning to the term 'under the Constitution' does not lead to any absurdity or illogicality. In such circumstances, the term 'under the Constitution' requires no further interpretation and the natural and ordinary must be given effect to.

       PLD 1959 SC (Pak.) 470

       '... It is well recognised that in interpreting a provision of a Constitution the widest construction possible in its context should be given according to the ordinary meaning of the words used, and that each general word should be held to extend to all anciliary and subsidiary matters.'

       PLD 1958 SC (Pak.) 499

       The correct...