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Seeking open ballot in Senate elections: Another move undertaken leaving two other initiatives unattended

By Tariq Butt
January 12, 2021

ISLAMABAD: Leaving a proposed constitutional amendment and a suggested change in the Elections Act in the National Assembly unattended, the government has gone to the Supreme Court seeking an open ballot in the upcoming Senate elections in March.

On October 29, the government moved a constitutional amendment bill in the National Assembly recommending a change in Article 59(2) by inserting the word ‘open’ for voting in the Senate elections.

The existing provision says that election to fill seats in the Senate will be held in accordance with the system of proportional representation by means of the single transferable vote.

Under Article 226, all elections under the Constitution, other than those of the prime minister and the chief minister, are held by secret ballot. The proposed amendment seeks to include the Senate election among these exemptions.

On October 16, the government tabled an amendment bill, which intends to change Section 122(6) of the Elections Act, 2017 to do away with the secret ballot in the Senate polls. It was stated that transparent Senate elections without manipulation – something that has happened in the past — is the long-standing demand of almost all the political parties including the Pakistan Tehreek-e-Insaf (PTI).

The federal cabinet had constituted a committee to formulate recommendations regarding electoral reforms in order to ensure transparent, free and fair elections. Based on its proposals, the cabinet approved an electoral reforms package consisting of the 26th constitutional amendment bill and changes in the Elections Act. These bills broadly covered the Senate elections, reserved seats for women and minorities, delimitation of constituencies on the basis of enrolled voters instead of population, voting rights to overseas Pakistanis and the conditional participation of dual nationals in polls.

There has been no action by the National Assembly on the two amendment bills. The government has also not shown any eagerness to get them passed as the opposition has not been approached to evolve a consensus.

While these bills were lying in the parliament unattended, President Dr Arif Alvi moved a reference in the Supreme Court on December 23 invoking the apex court’s advisory jurisdiction to know whether an open ballot rather than a secret vote can be deployed for the March Senate elections. The move came when the Senate polls were just a few weeks away with an additional announcement that the government was keen to hold these elections before the stipulated time. This move achieved its objective as it forced the opposition Pakistan Democratic Movement (PDM) to divert its attention towards these issues.

The government ostensibly concluded that it will not be possible for it to get the two bills passed by parliament in view of its tense relationship with the opposition and because there is not enough time left before the Senate elections to carry out the legislation. Therefore, instead of pushing the bills for approval by parliament, it opted for a third option – approaching the apex court. On December 15, the federal government announced it would hold Senate elections in February and invoke the advisory jurisdiction of the apex court on open voting for the polls. The proposal to seek the court’s opinion under Article 186 was given by Attorney General Khalid Jawed Khan.

He said if Section 122(6) of the Elections Act was amended through a presidential ordinance before the commencement of the poll schedule by the Election Commission of Pakistan (ECP), the Senate elections could be held through open voting instead of a secret vote.

However, the attorney general said, keeping in view the sensitivity of the matter and given the fact that there is not sufficient time before the next elections to the Senate, the government may seek clarity on the issue by filing a reference to the Supreme Court. This course is not necessary but as the matter is of utmost importance and would affect the functioning of the Senate, it may be prudent to seek the opinion of the court.

The attorney general was of the opinion that contrary to conventional understanding, there was another view which held that the Senate election was not an election under the Constitution but is instead held in under the Elections Act which can be amended through a presidential ordinance.