Senate seats must be in proportion to seats in assemblies: Supreme Court

ISLAMABAD: A political party should get seats in the Senate in proportion to seats held in provincial assemblies, the Supreme Court observed on Wednesday.

The court's observations came during a hearing in the presidential reference seeking an opinion on open balloting for the upcoming Senate elections.

A five-member larger bench headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Yahya Afridi heard the reference.

During the course of proceedings, Chief Election Commissioner (CEC) Sikandar Sultan Raja appeared in the court and submitted a revised reply of the commission before the bench.

The counsel for Election Commission of Pakistan (ECP) submitted that Senate elections were held under Article 226 while Article 218 authorised the commission to hold transparent elections.

He said that the interpretation of Article 218 did not defuse Article 226 and did not limit the secrecy of Article 226. The ECP lawyer said that keeping the votes secret means that they would always remain secret — the cast votes could never be shown to anyone.

Justice Ijaz-ul-Ahsan remarked that the votes cannot be kept secret forever. "It is neither in the Constitution nor in court decisions to keep the vote secret forever," he said.

Justice Ijaz-ul-Ahsan asked what proportional representation means.

The seats of the political party in the Senate should be commensurate with the seats in the Provincial Assembly, he said, in response to his own question. He added that the word "free vote" was used in National Assembly voting, while the word "free voting" was not included in the law for Senate elections.

Justice Ijaz-ul-Ahsan also asked how the Election Commission would ensure proportional representation. He said that every political party should get seats in Senate elections according to its proportion and if a party got fewer seats, the Election Commission would be responsible.

"The selling of votes would violate the principle of proportional representation," he added.

He said if a party won seats out of proportion, "the system would be destroyed".

Meanwhile, Chief Justice Gulzar Ahmed asked what the Election Commission would do if any party won more Senate seats than the proportion and how it had determined that elections were held with proportional representation.

The ECP counsel said that no one could be prevented from exercising their right to vote. He said that Article 226 will have to be amended in order to view the vote.

The chief justice then asked whether the Senate elections would be annulled due to the lack of proportional representation.

Voting could be secret, but the seats must be according to the proportion, he added.

CJP Gulzar Ahmed said that vote buyers would also have a system to check whether the seller would vote or not. He said that the Election Commission "knew of this but was not telling the court".

He asked how vote buyers make sure they get votes.

"The fate of the country is in the hands of the Election Commission and it should understand its responsibilities," he added.

Justice Ijaz-ul-Ahsan said that the Election Commission had the power to stop vote selling but the commission says it will take action after the theft has occurred.

He asked what the legislation would be like if the political parties got fewer seats than the proportion. He said that drugs and ill gotten money are used to buy votes.

Attorney-General for Pakistan Khalid Jawed Khan said that the Election Commission must wake up.

All state institutions are bound by the word of the Election Commission, he added.

He said that bar codes or serial numbers could be written on ballot papers.

Horse trading can be discouraged if there is a bar code on the counter file and ballot papers, he added.

After completion of the Attorney General's arguments, Advocate General Khyber Pakhtoonkhwa Shumail Butt started his arguments and said members of the assembly could not vote in Senate elections of their own choice.

Proportional representation means numerical representation of the Provincial Assembly in the Senate, he added.

Justice Yahya Afridi said that if there was proportional representation then what was the need for elections.

Later, the hearing of the case was adjourned till Thursday (tomorrow).