Senate election by show of hands

Islamabad : According to legal experts, the election to the Senate is not an election ‘under the Constitution’ and can, therefore, be held by a show of hands. Also, there is no need to amend the Constitution to hold the Senate elections through a show of hands, and only the Elections Act, 2017 is required to be changed through a presidential ordinance.

This opinion is contained in a letter dated December 9 (available with The News) that Attorney General of Pakistan Khalid Jawed Khan sent to Prime Minister Imran Khan through his principal secretary. However, he recommended that in view of the sensitivity and significance of the matter, it may be prudent to seek the opinion of the Supreme Court on the issue under its advisory jurisdiction as per Article 186.

The letter also referred to certain judgments of the superior courts on the matter in support of its contentions.

The letter says that the election to the Senate is scheduled to be held in or about March 2021 to fill seats falling vacant. The prime minister has made a public statement conveying the desire of the federal government to hold the election by an open ballot/show of hands as against secret balloting.

At present, Section 122(6) of the Elections Act, 2017, provides for the Senate poll by secret ballot. The letter said that Article 226 provides that all elections under the Constitution other than those of the prime minister and the chief minister shall be held by secret ballot. In view of this provision, it has been assumed that the election for the Senate is constitutionally bound to be held through a secret ballot and unless the Constitution is amended, it cannot be held through open voting/show of hands.

However, the letter says, contrary to this convocational understanding, there is another view which is that the election to the Senate is not an election under the Constitution. It is held in terms of the provisions of the Elections Act. The elections under the Constitution to which Article 226 refers are the election of the president of Pakistan under Article 41(3) read with the Second Schedule to the Constitution. Likewise, the elections of the speaker, deputy speaker, Senate chairman and deputy chairman are elected under the Constitution.

The letter says that Article 226 has been interpreted in the past by different courts. The Sindh High Court (SHC) in the case of the MQM vs the province of Sindh (PLD 2017 Sindh 169), following the earlier judgment of the Balochistan High Court (BHC) in the case of Attaullah vs the Government of Pakistan (PLD 2014 Balochistan 206), held that the elections to the local government are elections under Article 226 and must be held by secret ballot.

However, subsequently on an appeal against the SHC judgment, a three-member Supreme Court bench held that local government elections can be held through secret ballot or through a show of hands and the choice is left to the legislature. The determining factor would be the provisions in the applicable statute at the time of commencement/announcement of the election schedule.

The letter states that while this Supreme Court judgment was a short order comprising four pages, no detailed reasons were recorded in that judgment and all three judges have since retired. It is settled law and in the absence of detailed reasons, a short order is the judgment/order of the Supreme Court and is fully binding.

The letter adds that if section 122(6) of the Elections Act, 2017 is amended through an ordinance before the commencement of the election schedule/process of the Election Commission of Pakistan, the Senate election can be held through an open method rather than secret ballot.

However, keeping in view the sensitivity of the matter and given the fact that there is sufficient time before the next Senate elections, the federal government may seek clarity on the issue by filing a reference to the apex court under Article 186. While this course is not necessary, as the matter is of utmost significance and would affect the functioning of the Senate, it may be prudent to seek the opinion of the Supreme Court on this issue.

The letter says that if so desired by the prime minister, the matter may be placed before the federal government for further deliberations and decision. Consequently, the matter was put before the federal cabinet on Tuesday, which through its communiqué said the advisory jurisdiction of the Supreme Court is now being invoked.