SC summons chief election commissioner, others in Senate open ballot case

The Supreme Court has summoned the chief election commissioner (CEC) as well as the provincial members of the Election Commission of Pakistan (ECP) today [Tuesday] along with a proposed scheme to curb corrupt practices in Senate elections.

A five-judge larger bench – presided over by Chief Justice of Pakistan Gulzar Ahmed – issued this order on Monday while hearing a presidential reference asking the court if the Senate elections could be held through open ballot without any constitutional amendment.

The bench noted that there is a general perception that corrupt practices are rampant in the Senate elections. The court referred to Article 218 (3) of the Constitution which says it is the duty of the ECP to curb corrupt practices in elections.

It observed that the ECP has seemingly not yet evolved a scheme to curb corrupt practice.

Apparently referring to a recent horse-trading video, Justice Ijazul Ahsan – a member of the bench – said if there is credible evidence of buying and selling of votes in the Senate polls then the ECP may look into option of open ballot in order to comply with Article 218 (3) of the Constitution.

He asked the ECP's counsel Sarjeel Swati whether the commission had disqualified any lawmaker who was involved in corrupt practices. Justice Umar Ata Bandial, another bench member, also asked if the ECP is taking any action “now that there is evidence of corrupt practices and a video has also surfaced”.

Read: Open ballot: No need to ‘amend Constitution’

Attorney General for Pakistan (AGP) Khalid Javed Khan said the ECP is silent in view of the statement it has submitted in response to the presidential reference. The ECP, the country’s polls supervisory body, has opposed the idea of introducing open ballot mode in Senate polls.

AGP Khan expressed disappointment over the decisions of the Pakistan Bar Council (PBC) and the Sindh High Court Bar Association (SHCBA) to become parties in the case and opposing the reference.

The AGP said it is worrying that political parties and the bar councils are opposing the open ballot mode. He said the bar councils are opposing open balloting while the survival of democracy depends on transparent elections.

“Bar councils have played a role in upholding the Constitution and the rule of law in the past, and they should review their position. But now the PBC and the SHCBA have made an alliance with political parties,” he alleged.

The AGP also referred to the recent ransacking of the Islamabad High Court (IHC) by lawyers and said that the bar councils also did not condemn the disgraceful incident.

The CJ said the bar associations have asked the court to announce a decision according to the Constitution. However, he remarked that bars should be independent and not partisan.

Justice Ahsan said the bar councils have also sent their resolutions to the bench members, which, according to him, is not professional behavior. “It is necessary to determine the limits from where the work of bar councils ends and that of the court begins, he added.

Justice Bandial noted that the ECP is a federal institution whereas the local governments are a provincial subject. However, the provincial assemblies bind a federal body through legislation, he added.

He said the parliament did not amend the law to pave the way for holding the upcoming Senate elections through open ballot when a bill was introduced by the government. The AGP replied that sometimes a judicial interpretation is required.

“The court interprets the law and the parliament amends it accordingly. Previously the ECP had been given powers as per court orders,” he added.

PML-N counsel Zafarullah contended that the ECP is an autonomous body which does not come under Article 190 which makes it binding on all the executive authorities to comply with the SC decision. “The ECP is not an executive body and the SC decisions are not binding on it,” he added.

Later, the court summoned the CEC and ECP members and adjourned the case till Tuesday.

The PTI government is eager to hold Senate elections through an open vote. While it claims that open ballot would promote transparency, the Pakistan Democratic Movement (PDM) opposes this idea and describes it as an attempt by the government to stop its lawmakers from switching loyalties.

Last month, the government filed a presidential reference, asking the SC if the upcoming Senate election – scheduled for March 3 – should be held “under the Constitution” or “under the Election Act 2017”.

It also moved a bill seeking to amend the Constitution for introducing open ballot in the Senate elections. Though the concerned standing committee passed the bill, the National Assembly witnessed a noisy session when the government presented the 26th constitutional amendment bill in NA.

Seeing this strong resistance, President Dr Arif Alvi on February 6 signed the Election Amendment Ordinance, 2021, under which the upcoming Senate elections could be held through open balloting.

The ordinance, which amends sections 33, 86 and 122 of the Election Act 2017, was announced with immediate effect. Its enforcement will be subject to the outcome of a presidential reference pending before the SC.