Rereading the constitution

Chief Justice Marshall’s reflection in ‘McCulloch v Maryland’ (1819), “it is a Constitution we are expounding” has travelled down the ages as a warning as well as an invitation.

A written constitution is a remarkable human construct. Its words are intended to achieve two broad outcomes. First, to put in place a structure of governance with defined limits to the exercise of authority by the institutions of the state. Second, to lay down rights as well as obligations and the attendant principles that are to be drawn upon in interpreting the text of the constitution so as to advance its purposes. While constitutional texts allow for competing interpretations, and evolution in understanding, the act of interpretation must remain tethered to the text. Words are not endlessly malleable. The power to amend the constitution is the supreme attribute of democratic sovereignty reserved by the constitution for parliament (acting with the requisite majority).

The advisory opinion sought by the federal government from the Supreme Court of Pakistan with respect to the Senate elections has, during the course of the proceedings, ended up raising the following issues: one, Article 226 of the constitution stipulates that all elections “under the Constitution” be held through secret ballot except for the election for the posts of prime minister and chief minister. Is an election to fill seats in the Senate allocated to each province not to be considered an election ‘under the Constitution’ even though the Senate is established and the manner of election of its members is prescribed by the constitution itself in Article 59?

Two, Article 59(2) of the constitution directs that election to the Senate “shall be held in accordance with the system of proportional representation by means of the single transferable vote”. Can this provision be read with Article 226 in order to limit, and make conditional, the secrecy of the ballot that is mandated by Article 226? More particularly, in the event of a party not securing seats in the Senate proportionate to its membership in the provincial assemblies, or the National Assembly in the case of senators for Islamabad, should the party head be able to access ballot papers polled by the members of his/her party and for this purpose should the ballot papers contain marking that allows for the identification of each voter?

A Senate election so patently being an election under the constitution, and the superior courts having held so, it is the second issue that has largely taken over from the first as the hearings have progressed. The suggestion that “the system of proportional representation by means of the single transferable vote” prescribed by Article 59(2) for election to the Senate allows the court to dilute or qualify the secrecy of ballot prescribed by Article 226 requires an examination of the proportional representation intended by Article 59(2).

Several points may be noted. First, the reference in Article 59(2) is to the “system of proportional representation through a single transferable vote” being polled by the electors and not to proportional representation in the Senate on the basis of the proportion of seats held by each party in the provincial assemblies or, in case of Islamabad, the National Assembly.

Proportional representation through a single transferable vote is a method of voting that is distinct from the ‘first past the post’ system of voting that is prescribed for election to the general seats in the provincial assemblies and the National Assembly. In the ‘first past the post’ system of voting, the candidate getting the highest number of votes gets elected from a constituency and the votes polled in favour of all other candidates fail to have any impact on the outcome of the election. These votes are, in effect, rendered voiceless in the electoral process.

The system of proportional representation on the basis of single transferable vote allows for more than one member to be elected from a particular constituency. The constituency in the case of senators representing a province is the provincial assembly of the province and in the case of senators representing Islamabad, the National Assembly. Their members are the electors. The proportional representation envisaged by the method of the single transferable vote allows each elector to rank the various candidates in order of preference. Consequently, each elector’s vote has an impact not only with respect to the election of the candidate ranked first by such elector but also has a proportionate impact on the electoral prospects of candidates ranked second, third, fourth and so on.

The scheme of proportional representation prescribed by Article 59(2) of the constitution is entirely distinct from the alternative method of proportional representation that is prescribed in Articles 51(6) and 106(3) for filling up the seats reserved for women and non-Muslims in the national assembly and the provincial assemblies. These reserved seats are to be filled up through a “proportional representation system of political parties lists of candidates on the basis of the total number of general seats secured by each political party”. The “list proportional representation system” ensures that the reserved seats are filled up in proportions that reflect the proportionate strength of each political party in the house. The system of proportional representation through a single transferable vote prescribed by Article 59(2) of the constitution for election to the senate provides no such assurance.

As a matter of practice and political obligation, party heads expect provincial and national assemblies’ members to cast their ballots, with ranking assigned to different candidates, in exact compliance with the directions issued to them by the party. Whatever the merits of this practice and obligation, neither the constitution nor any law mandates the obedience that party heads demand. Article 63-A of the constitution directs parliamentarians to obey party directives only with respect to the election of the prime minister or a chief minister or with respect to a vote of confidence or no confidence or at the time of the passage of a money bill or a bill to amend the constitution.

While electors can defy party directives to vote for corrupt reasons, they can also do so for reasons of conscience when a party ticket is given to someone they consider unworthy. This forces the party head to engage with his/her members in order to arrive at decisions about party tickets in a manner that fosters democracy within the party. Article 226 allows dissent to be recorded through a secret ballot.

What constitutes a secret ballot has come to be well understood in modern times. In 1971 the Supreme Court of Ireland was presented, in the case of McMahon v Attorney General, with a suggestion nearly identical to the proposal that has been placed before the Supreme Court of Pakistan by the federal government. Article 16 of the constitution of Ireland of 1937 states that “voting shall be by secret ballot”. The attorney general’s position before the Irish Supreme Court was that a marking on the ballot paper that allowed it to be traced back to a counter file containing the voter’s identification satisfied the requirements of the Irish constitution as long as the voting itself was allowed to be carried out in secrecy on voting day. In rejecting the Irish attorney general’s contention, the court held “Limited secrecy is not secrecy: it is something less than secrecy”.

The primary question that must immediately involve ‘we the people’ is not whether an open ballot for Senate elections will usher the light of truth into our collective lives that secrecy at the polls has benighted. This is a question that must be deferred till we have engaged with the more vital question of how the constitution is to be read, obeyed and amended, if found deficient. Nothing like our Article 226 exists in most constitutional templates around the world. Are we to render this provision of our constitution redundant? The answer to this question will define the nature of our democracy. We cannot remain uninvolved.

The writer is an advocate of the Supreme Court of Pakistan.

Email: salmanr2002@hotmail. com

Twitter: @salmanAraja