K-P backs presidential reference on open-ballot at upcoming Senate election

Advocate General K-P Shumail submits synopsis in the apex court

Following the Punjab government, Khyber-Pakhtunkhwa (K-P) on Saturday backed presidential reference, seeking guidance from the Supreme Court on the PTI-led federal government's plan to amend the Election Act 2017 through an ordinance to allow the use of open-ballot at the upcoming Senate elections.

Advocate General K-P Shumail has submitted the synopsis in the apex court.

The statement said that "the edifice of democracy in Pakistan, rests on a system of free and fair elections and that parliamentary democracy is a basic feature of the Constitution".

The concept of a democratic government depends on a free and fair election system. In addition, the statement said that it is the will of the people that shall remain paramount and become the basis of the authority of the government. The will is expressed in periodic direct elections to the national and provincial assemblies based on universal adult suffrage.

"The very purpose of the right to vote - which is the basic postulate of democracy - is the formulation of opinion of the masses about the candidates, or for that matter, the political party or parties they choose for themselves as rulers by the expression of choice, made by masses, by casting the vote in favor of the preferred candidate(s)/political party at the polling booth," it further asserted.

"Any system or arrangement that provide or foster modalities, whereby such will of the people is later somehow subverted or maneuvered, and the choice of masses is by any means supervened by choice of an individual shall fall foul to the principles of true representative democracy and thus, against the very basic feature of the Constitution," the statement read.

The statement, submitted to the apex court, also said that in Pakistan's system of democracy - with multiple parties at the federal and provincial level - the electorate is often required to send to the legislative assemblies the parties of their choice, based on the result of universal adult suffrage.

It stressed that a political party functions on the strength of shared beliefs and its own political stability and social utility depends on such shared beliefs and concerted action of its members in furtherance of those commonly held principles.

"Masses, while exercising the right of a free and fair election, and choosing the candidates or members of a given party, express their approval of a set of shared beliefs," it added.

"Any later freedom of its elected members to vote as they please independently of the political party's declared policies will not only embarass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance. Intra-party debates are different but a public image of disparate stands by members of the same political party is not looked upon, in political tradition, as a desirable state of things but amounts to undermine the will and decision of the true electorate ie. general masses."

It also noted that is it the political parties that mostly set up memberships of the national and provincial assemblies, adding that in a system where members of these assemblies act as the electoral college of the upper House, secrecy of ballot, instead of ensuring free and fair elections, defeats the purpose for which the system is enacted.

"It has already been suggested by a Committee of the full House of Senate in May, 2016, that this principle of secrecy of ballot will have to yield to the larger principle of free and fair elections by devising the mechanism of printing the name of the voter on the ballot paper and giving authority to the party head to seek details after the election.

"The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections. They can co-exist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact, secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play."

Moreover, secrecy of voting during many elections in the Senate, in the past has led to serious allegations of corruption, floor-crossing, horse-trading and cross-voting. To those who advocate secret balloting in all matters, including elections, it should be pointed out that voting on all other issues in the legislatures is invariably open and not by secret ballot.

It questioned why the Senate election is an exception when other important matters can have important choices by show of hand. "Verily, the common man participating in direct election as a voter exercising his vote in a polling booth requires a certain safeguard of secrecy, but elected members of legislative assemblies, otherwise morally bound to follow the party lines and manifesto are expected to have stronger moral fiber, character and trustworthiness and shall remain loyal to the confidence reposed in them by masses when they are supposed to vote on party lines," it added.

Furthermore, the statement maintained that any arrangement based on open balloting at the Senate election will therefore be in furtherance of the very object sought to be achieved by the representative democracy through proportional representation and single transferrable vote.

Voting at elections for the Senate cannot be compared with a general election. "One might also suggest that this preposition may get extrapolated and can be overblown to support open balloting even for direct elections but this is not the case of the answering province, by any means.

In a general election, the voters have to vote in a secret manner, without fear that their votes will be disclosed to anyone or may result in victimization. There is no legally binding party affiliation and hence, the choice is entirely with the voter. However, this is not the case when elections are held for the Senate, as the voters are elected members of the national and provincial assemblies, who in turn have party affiliations.

"All over the world in democracies, although members of the lower Houses are chosen directly by popular vote, yet in a number of representative democracies, indirect means of election adopted on party lines, particularly to upper houses, is also well accepted practice," the statement read, citing India, Australia and South Africa as examples.