SC opinion on Senate polls to carry weight

ISLAMABAD: The “opinion” to be given by the Supreme Court on the question whether the Senate elections should be held by secret or open ballot will carry the same weight and consequence as any other judgment, handed down by it, does.

“Since the opinion on the presidential reference filed by the government will come from the highest court of Pakistan, its effect will not be less than any of its normal verdict,” eminent constitutional expert and former Senate Chairman Wasim Sajjad explained to The News.

He said no state institution, including the Election Commission of Pakistan (ECP), can go against the opinion of the apex court, which is likely to be given on Monday (today) just two days before the scheduled polling for the Senate elections on March 3.

Wasim Sajjad said as the Senate polls are not an elaborate electoral exercise like the general or local bodies elections, the ECP will not find much difficulty in implementing the affirmative opinion of the Supreme Court to the question that the Senate polls do not fall within the purview of Article 226 of the Constitution, meaning that they are to be held through an open ballot and not secret vote.

He said the ECP can get a small number of ballot papers, which will be required for the members of the Electoral College, printed afresh. These ballots will be needed for the members of the National Assembly and legislatures of Sindh, Khyber Pakhtunkhwa (KP) and Balochistan. There will be no such requirement for the Punjab Assembly as all the eleven senators have been elected unopposed from this legislature.

Another legal expert said even if the ECP did not want to go for printing of fresh ballot papers, it can note down in its record the name of every member of the Electoral College, who will be issued the present ballot paper. This exercise, he said, will enable the party head to see afterwards whether any lawmaker, who has been suspected of going against the party direction, voted for its candidate or not.

As a precautionary measure, the government had issued in the first week of February a conditional presidential ordinance, which is to come into effect only if the Supreme Court opines that the Senate elections are to be held through open ballot.

The ordinance provided that in case the Supreme Court gives an opinion in the reference that the Senate polls do not fall within the purview of Article 226, these elections to be held in March and thereafter will be conducted by the ECP through open and identifiable ballot.

It also said after these polls, if the head of the political party requests the ECP to show the ballot cast by any voting member of his party, the ECP will show the same to him or his nominee.

Since 1985 when the Senate was reintroduced after the non-party general elections, all the polls for the Upper House of Parliament had been held through the secret ballot. The question that the Constitution doesn’t prescribe secret vote for the Senate polls had never arisen or had never been brought before any superior court for adjudication.

The government filed the reference with the Supreme Court in the last week of December, 2020. The court will send its opinion to President Dr Arif Alvi. On Feb 25, when the court reserved its opinion, the ECP lawyer requested it to give the opinion before Feb 28 so that the process for holding Senate elections could be completed in time.

In their stands taken before the apex court, the provincial governments followed the lines of the political parties that rule them. The lawyers of the Punjab and KP governments supported the reference and called for an open ballot while the Sindh advocate general stressed continued secret ballot. However, the supreme associations of the lawyers pleaded before the Supreme Court that the Senate elections should be held by secret ballot and the open vote should not be allowed.

Since the controversy over the mode of voting in the upcoming Senate elections erupted, the government leaders repeatedly referred to the Charter of Democracy (CoD) signed by Nawaz Sharif and Benazir Bhutto in London in May 2006 that provided for open, identifiable vote in the upper house polls. This was meant to remind the opposition parties that by opposing the open ballot, they have reneged on their own commitment.