Senate: why the secrecy?

Constitution-making in Pakistan took around nine years before the Constituent Assembly passed the first constitution on February 29, 1956. The major stumbling block in framing a constitution for Pakistan was centre-provinces relations.

The question of providing the Council of Provinces or Senate with equal powers as the popular house was discussed in the Constituent Assembly but that would have meant a much larger representation of the five federating units of the western wing compared to the single unit of the Eastern wing and representatives of the eastern wing were reluctant to accept this formulation.

The politicians in the western wing were also not happy to give all the powers to a single house of parliament in which the eastern wing would have had a permanent majority. East Pakistani representatives in the Constituent Assembly were finally persuaded to accept the principle of ‘parity’ of seats of East and West Pakistan in the federal legislature although East Pakistan had around 56 per cent of the population. The first five parliaments of Pakistan were therefore unicameral.

As the tragic separation of East Pakistan in 1971 proved, the parity and unicameral parliament was a flawed solution that neither satisfied the eastern wing nor the smaller provinces in the western wing.

After the 1973 constitution came into effect, parliament was composed of the National Assembly as a directly elected popular chamber with its seats allocated to the provinces and territories based on the population of each federating unit and the Senate which has equal representation of each province irrespective of population. Each senator has a term of six years, and half the senators retire every three years. The Senate is, therefore, a permanent body and a ‘Chamber of Continuity’.

Over time, the role of the Senate has enhanced. The Upper House has also made a significant contribution to strengthening the federation as smaller provinces feel that their point of view and the vote carries more weight through the Senate of Pakistan because each piece of legislation has to be separately passed in each chamber before it can become a law.

All elections under the constitution of Pakistan have to be conducted through secret ballot except the elections of the prime minister and the chief ministers as provided in Article 226. The election of senators has, therefore, always been held through secret ballot since its first election in 1973.

Whenever the result of the Senate election differed from the expectation of a political party, the party leadership suspected that its legislators had been swayed to vote against the party nominees either under pressure or through monetary inducement.

Generally, party leaderships didn’t appreciate that defying the party line might just be the independent choice of legislators exercised without any fear or favour. Despite sporadic demands for doing away with the system of secret ballot and introducing open ballot or a show of hands to count votes, there has been a consensus on secret voting for the initial 47 years.

It was before the Senate election of March 2021 when the then PTI chairman and former prime minister Imran Khan forcefully demanded that the Senate election be held either through an open ballot or show of hands because he suspected that his opponent parties would buy votes of his party legislators and deprive PTI of its due share of seats in the Senate.

Under his advice, former president Arif Alvi sent a reference to the Supreme Court enquiring whether the Senate election had to be held under secret ballot. Initially, the court responded rather vaguely but its detailed advice was very clear: per the constitution, the Senate election has to be held via secret ballot. It is therefore a settled matter now that, until the constitution is amended, the secret ballot mode of Senate election cannot be changed.

As we approach the 2024 Senate election, the PTI’s suspicions about the horse-trading of its legislators have grown many times because the party is no more in power, and its legislators may be under much greater pressure or monetary inducements to change loyalties now than was the case three years ago.

It is not only the Senate election where legislators have been given the freedom of casting their vote according to their preference; they can also freely exercise their votes in complete secrecy while electing the president of Pakistan and presiding officers of their respective legislatures as well. Because of the secret ballot system, it is not possible to know who voted for whom -- but even if it is found out that a legislator has voted against the party direction, the penalty for defection can’t be applied to the defiant legislators.

According to Article 63-A of the constitution, a legislator is deemed to have defected only when he or she votes against the party direction on four specific occasions -- the election of prime minister or chief minister, a vote of confidence or no-confidence against PM or CM, vote on money bill and, lastly, a constitutional amendment bill. In all other cases, the constitution allows legislators to exercise their judgment even if it is against their party’s direction.

Parties, however, devise many other democratic means to make sure that party legislators follow the party line. A continuous system of consultation with party legislators, incorporating their views into party policy, promoting intra-party democracy to give party positions to legislators, and developing a strong party identity are some of the traditional ways to ensure party unity and cohesion.

Since Pakistani political parties are, by and large, not very democratic and major party decisions are taken by a few leaders at the top, party legislators develop resentment against this attitude and exercise their right to dissent when they get a chance.

Party legislators cannot and should not be legally bound by party discipline in each step they take within legislatures as was done through the 14th Amendment in 1997 by the then Nawaz Sharif government. Legislators elected by hundreds of thousands of constituents can’t be programmed like robots for all to act in a certain way.

There is always a possibility that some legislators defy party directions and vote against party candidates in a Senate election and this may happen in the coming election as well -- but such cases have been very few in the past. Instead of relying on legal restrictions, a democratic culture should be promoted within parties to choose party candidates democratically and not on the whims of the top leadership.

The writer is President of PILDAT.  He posts/tweets @ABMPildat and can be reached at: president@pildat.org