Govt seeks Supreme Court’s opinion on Senate voting through open ballot

ISLAMABAD: The federal government on Wednesday sought the opinion of the Supreme Court of Pakistan on holding the upcoming elections for the Upper House of Parliament through open ballot and show of hands.

Filed under Article 186 of the Constitution by the Attorney General of Pakistan Khalid Javed Khan after getting approved by President Dr Arif Alvi, the government sought the opinion of the country’s highest court on amending Section 122(6) of the Elections Act, 2017 without amending the Constitution.

“The requirement of secret ballot for elections for Senate is not by way of a constitutional mandate but it is by only way of a statutory provisions namely Section 122(6) of the Elections Act, 2017, which may be amended by an act of Parliament or through an ordinance promulgated under Article 89 of the Constitution,” says the reference.

The reference contended that the hands of the legislature cannot be tied by way of implication or assumption of a constitutional prohibition where none exists specifically.

“This is all the more so when the matter does not impinge upon fundamental or vested right of the citizens,” says the reference, adding that secrecy or openness of ballot is only relatable to the machinery provisions of a statute. It further submitted that the legislature in its wisdom may equally provide for open ballot for elections to the Senate by substituting the word ‘secret’ with ‘open’ in Section 122(6) of the Elections Act, 2017.

The president submitted that the interpretation of the Constitution and the laws is the exclusive domain of the judiciary with the Supreme Court as the final court.

“Through the reference, the opinion of this august court is requested on the legal question as to whether the elections for the members of Senate do not fall within the elections held under the Constitution as envisaged in Article 226 of the Constitution with the consequence that voting could be held either through open orsecret ballot as may be provided in the Elections Act, 2017 itself,” says the reference.

The reference contended that the instant question of law of public importance has arisen in the context of the malaise of vote buying that has damaged the purity of elections. “Every Senate election since 1985 has generated debate followed by commitment for reform and promise for open ballot,” it added.

The reference further contended that there is a national consensus amongst all major political parties, jurists, academia, journalists and civil society that the electoral process should be cleansed of the pervasive practice of vote buying in elections to the Senate. “Even if Article 226 of the Constitution was amenable to two possible interpretations, this court has always adopted the interpretation which advances greater public welfare and good,” says the reference.

It contended that through acceptance of the interpretation of Article 226 as advanced here, the larger national objectives could be achieved through equally legitimate constitutional methodology of interpretation of the Constitution entrusted to the court.

The reference claimed that it will promote transparency and accountability in the electoral process, acknowledge respect for the choice and desires of the citizen voters, strengthen political parties and their discipline which is essential for parliamentary democracy, discourage floor crossing, use of laundered money for vote buying in elections which grossly insults the mandate of the people.

The reference recalled that the issue of open ballot/show of hands as against secret ballot also arose in the context of elections under the local government constituted under Article 140A of the Constitution.

It submitted that a division bench of Balochistan High Court delivered a judgment in the case of Attaullah vs Government of Pakistan PLD 2014 Balochistan 206 holding that the elections to local government are covered under Article 226 of the Constitution and, therefore, must be held by secret ballot.

“This view was also adopted by a division bench of Sindh High Court in the case of MQM vs Province of Sindh PLD 2017 Sindh 169. The judgment of SHC was appealed against in the Supreme Court in Civil Appeals No.760 to 765 of 2016 in the case of the Province of Sindh vs Muttahida Qaumi Movement. Vide short order dated 15.4.2016, a three member bench of the Supreme Court was pleased to hold that the elections for the posts of mayor, deputy mayor, chairman and vice chairman are to be held under the Constitution and the law i.e. the Sindh Local Government Act, 2013, therefore, it is within the competence of Sindh government to legislate law to hold such elections either through show of hands or secret ballot,” says the reference. It adds, “This principle of law as enunciated by the Supreme Court in the case of local governments is to apply for election for members of the Senate.”

The reference also cited an example of India stating that India Representation of the People Act, 1951, had initially provided for secret ballot for elections to the Upper House, however, later faced with the malaise of vote buying Section 59 of the Act, 1951, was amended in the year 2003, providing for open ballot for elections for members of the Upper House.

The government contended that if the coming elections to the Senate are yet again marred by vote buying owing to secrecy of ballot as has happened in the past, this would undermine the confidence of the people in democratic process.