The Supreme Court (SC) on Tuesday fixed the hearing for the presidential reference, seeking guidance on holding the upcoming Senate polls through open ballot, on January 4.
A five-judge larger bench, headed by Chief Justice of Pakistan (CJP) Gulzar Ahmed and comprising justices Mushir Alam, Umar Ata Bandial, Ijaz ul Ahsan and Yahya Afridi, will take up the reference.
Last week, the Pakistan Tehreek-e-Insaf-led federal government filed a presidential reference to the apex court seeking guidance about holding the upcoming Senate polls through open ballot rather than through secret balloting.
Attorney General of Pakistan (AGP) Khalid Javed Khan filed the reference under Article 186 of the Constitution, invoking the court’s advisory jurisdiction.
The reference seeks interpretation of Article 226 that says all elections under the Constitution, other than those of the prime minister and chief ministers, shall be held through secret ballot.
The article says the interpretation of the Constitution and law is the exclusive domain of the judiciary with the Supreme Court as the final court.
“Through this instant reference, the opinion of this august court is requested on the legal question as to whether the elections for the members of the Senate do not fall with the elections held under the Constitution as envisaged in Article 226 of the Constitution with consequence that the voting could be held either open or secret ballot as may be provided in the Elections Act 2017 itself,” it said.
The reference asked if the condition of ‘secret ballot’ referred to in Article 226, is applicable only to the polls held “under” the Constitution – such as the election to the office of the president, the National Assembly speaker and deputy speaker, the Senate chairman and deputy chairman and speakers and deputy speakers of the provincial assemblies – and not to “other elections”.
It described “other elections” as the election for the members of the Senate “held under the Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41, Part 1, Fourth Schedule, which may be held by way of secret or open ballot, as may be provided for in the Election Act, 2017.”
The reference said this question 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 a debate followed by the commitment to reform and promise of open balloting.
Sindh High Court Bar Association (SHCBA) President Salahuddin Ahmed expressed serious concerns over the filing of a presidential reference on this matter. He said the parliament has amended Article 226 through 18th Amendment to dedicate the method of secret ballot for the election of the prime minister and chief ministers.
“Open ballot could not be introduced in the Senate polls without amending the Constitution,” he said.
The SHCBA president said the courts should not get involved in such political matters and advisory jurisdiction should be exercised only in public interest matters.
Earlier, a senior lawyer believed that the composition of the bench will be significant in this matter. Interestingly, the first three senior-most judges are part of the bench. Justice Qazi Faez Isa and Justice Maqbool Baqar who are on numbers fourth and fifth respectively in the seniority list are not part of the larger bench. Meanwhile, Justice Ahsan and Justice Afridi are included in the larger bench.
Justice Isa, who belongs to Balochistan, has apparently not been included in the bench owing to his 2014 verdict in favour of secret balloting as chief justice of the Balochistan High Court. Senior lawyers contend that could be a reason to not include him in the larger bench as he had already expressed his opinion on the same matter.
Three federating units are represented in the bench. While Justice Bandial and Justice Ijaz ul Ahsan are from Punjab, CJP Gulzar and Justice Mushir Alam are from Sindh, whereas Justice Afridi is from Khyber-Pakhtunkhwa.
Lawyers said a notice must be issued to all stakeholders, including the parliamentary parties and the Election Commission of Pakistan (ECP). Generally, the SC appoints amicus curiae in such matters.
Why open-ballot?
The presidential reference says there is national consensus amongst all major political parties, jurists and civil society that the electoral process should be cleansed of the pervasive practice of vote buying in elections to the Senate.
It says the desire to stop vote-buying through open ballot has manifested itself from time to time in the shape of political manifestos of major political parties, the Charter of Democracy executed in 2006 by two former prime ministers and respective heads of their political parties.
“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.
"Resultantly, the crucial reform agenda that the government is desirous of undertaking for the welfare of the people – including strengthening and revamping the role of the regulators and regulatory authorities, reforms of criminal laws, the electoral reforms etc – will mostly likely stall causing unspeakable harm to the people,” it said.
The reference said if the Article 226 of the Constitution is amenable to two possible interpretations then this situation will advance greater public welfare and good. Through acceptance of the interpretation of Article 226, many objectives could be achieved.
It said this demonstrates that the Constitution is a living dynamic and organic document capable of redressing the ills of the electoral process without repeated amendments to the fundamental document, promote the principle of dynamic interpretation of the Constitution that reflects the will of the people and prohibits forever the entry of vote-buying undesirable candidates from entering the parliament.
“Had the framers of the Constitution intended to apply principle of secrecy of ballot for the Senate election also, they could have easily provided so in Article 59 of Constitution as it has been done in the election of president where secret ballot is specifically mentioned in Clause 12 of the Second Schedule which provides the procedure and machinery for the election of the president.
"The framers of the Constitution consciously left it to the wisdom of the legislature to frame election laws under Article 222 of the Constitution and left it to the legislature to provide for secret or open or any other method of voting, as may become available owing to developments in technology."
The reference said 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 the fundamental or vested right of the citizens. Secrecy or openness of ballot is only relatable to the machinery provisions of a statute.
"Thus, the legislature in its wisdom may equally provide for open ballot for election to the Senate by substituting the word ‘secret’ with ‘open’ in Section 122(6) of the Election Act, 2017."
It said, unlike the citizen voter exercising the right to vote for candidate of his or her choice in direct elections to the assemblies, the elected members of the assemblies who form the Electoral College for election to the Senate are not free agents of their will as such.
It says having been elected on party tickets; they are bound by the party discipline. Therefore, when voting in the election for the Senate, they act as agents and trustees of their party.
“While they are absolutely free to debate within their respective political parties for the selection of candidates for the Senate, once the party has selected its candidates and awarded party tickets, the members owe an obligation to follow the decision of the party and vote accordingly.
“Unlike the citizen voter in direct elections to assemblies, they have no privilege or justification to claim secrecy of their choice made through the ballot,” the reference maintains.
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