Senate ‘secret’ ballot faces LHC challenge

Plea comes after president invokes SC’s advisory jurisdiction on the issue

LAHORE:

A petition has been filed in the Lahore High Court, challenging the condition of secret ballot for the election of senators.

The petitioner, Munir Ahmad, pleaded the court to set aside Section 122(6) of the Election Act 2017 -- the condition of secret ballot for the election of Senate members -- as it was ultra vires of Articles 222 and 226 of the Constitution.

The petition came as President Dr Arif Alvi had earlier approached the Supreme Court, seeking its opinion whether ‘open ballot’ for Senate elections would help acknowledge the respect of the choice and desire of citizen voters.

Over 65 per cent of the senators are set to retire on March 11, 2021 after completing their six-year constitutional term. The total strength of the Senate is 104.

The term-wise data of the senators shows that out of the 52 members retiring from the present 103-member Senate in March next year, 34 belong to the opposition parties and 18 from the treasury benches.

The election has already become a hotly-contested political battle between the government and the Pakistan Democratic Alliance. The 11-party anti-government alliance contests the legitimacy of provincial assemblies that constitute the electoral college to elect the senators.

The petition stats the practice of vote-buying had damaged the purity of every Senate election since 1985 and it was always followed by the promise for reforms.

He submitted that all political parties, academia and other sections of society had consensus that this practice should come to an end.

"That there is a dire need to put a stop to vote-buying and this can only be achieved through an ‘open ballot’ mode”, he added.

He submitted that if the coming elections of the Senate were yet again marred by vote-buying, owing to secrecy of the ballot, this would undermine the confidence of the people in the democratic process.

He contended that Article 226 restricted secret ballot only for the election of president, speakers and deputy speakers of the National Assembly and provincial assemblies; and election of chairman and deputy chairman of the Senate whereas the elections for the members of the Senate did not fall under it.

He pleaded with the court to set aside Section 122(6) of the Election Act 2017, the condition of secret ballot for the election of Senate members, as it was ultra votes of Articles 222 and 226 of the Constitution.

The reference believes that the condition of secret balloting referred to in Article 226 of the constitution is applicable only to the elections to the office of president, speaker and deputy speaker of the National Assembly, chairman and deputy chairman of the Senate, speakers and deputy speakers of the provincial assemblies and not to the elections for the members of the Senate held under the Elections Act 2017.

The presidential reference, moved through Attorney General for Pakistan Khalid Jawed Khan, suggested that the legislature could provide for open ballot for the Senate elections by substituting the word ‘secret’ with ‘open’ in Section 122(6) of the Elections Act 2017. This will discourage floor crossing and the use of laundered money for vote buying in elections that grossly insult the mandate of people.

The reference argues that the Supreme Court can adopt the interpretation which advances greater public welfare and good.

By accepting the interpretation of Article 226, which the reference was advancing, a number of larger national objectives could be achieved through equally legitimate constitutional methodology of interpretation like promoting transparency and accountability in the electoral process.

The reference emphasised that the requirement of secret ballot for the Senate elections was not by way of a constitutional mandate rather only by way of 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.

 

With additional input from APP