While the government continues to stress the need for open ballot/show of hands in the forthcoming Senate election to curb horse-trading marring the process of induction of lawmakers into the upper house of the parliament, the opposition is continuing to allege that it is meant to serve the political interests of the ruling party as it “loses control over its own legislators”.

The judiciary, on the other hand, has observed that matters related to ballot secrecy had been left to the parliament and would be decided by it.

Chief Justice of Pakistan (CJP) Gulzar Ahmed, during the hearing of the presidential reference on holding Senate elections through open ballot on Wednesday, said that the judiciary was not the parliament and neither could it reduce its authority.

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According to Dawn, the CJP observed that it has to be seen how parties decide who to vote for. “Do parties have minutes of their meetings?” he asked.

He said the court had three questions in front of it:

  • Is Article 226 applicable to the Senate elections or not?
  • Can proportional representation be done through single transferable vote?
  • Are elections conducted according to the Constitution secret?

But with the verdict on the procedure to hold the election likely to come out soon, what do legal experts have to say?

In this regard, The Current reached out to lawyers Reema Omer and Muhammad Ahmad Pansota…

REEMA OMER:

This is exactly the question before the Supreme Court (SC): if SC opines Senate elections are “under the constitution”, Article 226 says they shall be by secret ballot. Any change, therefore, will require a constitutional amendment and amending the Elections Act (EA) either by an Act of Parliament or an ordinance won’t be enough.

In 2003, the Indian Parliament introduced open ballot in Rajya Sabha elections through amending the Representation of People Act (India’s equivalent of their Elections Act). However, this was possible because unlike the Pakistani constitution, the Indian constitution identifies which elections will be by secret ballot and leaves this question open for all other elections.

In my view, in Pakistan’s context, this change cannot be done without a constitutional amendment. The government’s argument is that the procedure for Senate election is in the EA and Election Commission of Pakistan (ECP) conducts this election (unlike speaker and Senate chairperson).

This is why Senate elections fall under the elections act and not the constitution.

The logical extension of this argument is that the general election where we all vote by secret ballot isn’t under the constitution either as that too is conducted by the election commission. This raises the possibility that the government could through an ordinance even make voting in the general election open. Surely, allowing such a scenario is deeply troubling.

It’s also important to note the question before the SC is not whether Senate elections should be by open ballot or not: the desirability or necessity of this move is not being determined by the SC. The court is only clarifying the procedure through which this can be done — whether by constitutional amendment or amendment of the EA.

Since the reference is under the court’s advisory jurisdiction, there are also limitations on how far the court can go in such proceedings.

Reports from SC proceedings, in this case, suggest the court is also looking at the possibility of reinterpreting “secret ballot” to allow votes to be identifiable. This would in effect be equivalent to the SC amending the constitution itself, which goes against the very foundation of our constitutional framework and separation of powers.

Let’s hope the SC sticks to the question in the reference before it and allows parliament to decide questions of desirability.

MUHAMMAD AHMAD PANSOTA:

The government’s uncertainty about the conduct of Senate elections through an open ballot adopting three different routes has ignited a constitutional and political debate across the country.

Referral of issue to the SC invoking its advisory jurisdiction under Article 186 of the Constitution for an opinion, tabling of constitutional amendment seeking amendment in Article 226 of the Constitution and then finally the passing of an ordinance on the subject by the president has certainly added to the already existing confusion on the subject.

Article 59 (2) of the Constitution states that the election of the Senate has to take place through a system of proportional representation and the members of the Senate should hold office for a term of 6 years. Article 218 (1) of the Constitution further states that the ECP is empowered to conduct elections of both houses: Senate and the National Assembly and Article 218 (3) embodies a duty on the ECP to conduct the elections in the best possible manner; in a fair, just and honest exercise–in accordance with the law. Confusion appears as a result of article 226, which says that the Constitution stipulates that all elections which are conducted “under the constitution”, except for the positions of Prime Minister and Chief Minister shall be by a secret ballot.

Chapter VII of the EA, section 122(6) provides that “poll for election of members of Senate shall be held by secret ballot”.

This gives rise to a million-dollar question i.e. whether the Senate is an election under the constitution and, if not, can the government amend section 122(6) of the EA?

Recently through a presidential ordinance, section 122(6) of the EA has been amended so as to allow for open and identifiable ballot subject to the outcome of the Reference No.1 0f 2021 pending before the SC to determine whether the election of the Senate falls under the Constitution or not?

Supreme Court through its judgment bearing CAS No.760-765 of 2016 titled as “Province of Sindh vs. MQM etc.” declared local government elections could be conducted through either secret or open ballot so long as the applicable law stated its legislative preference.

The government, in light of the above judgment, could have either amended the law through an ordinance or an act of parliament. The government chooses to promulgate the ordinance which, in my view, appears to be legal and constitutional, however, should not have been passed before the decision of the reference.

Dragging the courts into politics is not an appreciable move when the same could have been achieved without filing the said reference.