The apex court has noted that the seats of any political party in the Senate should be according to their existing number of seats in the provincial legislatures and that a disproportionate representation of parties in the upper house could lead to a collapse of the entire system.
"A political party should get a deserving number of seats in the Senate," said Justice Ijazul Ahsan as part of a five-judge larger bench which on Wednesday resumed hearing of a presidential reference seeking the court’s opinion on introducing open ballot mode in the upcoming Senate elections.
Chief Election Commissioner (CEC) Sultan Raja appeared in the courtroom along with all provincial members of the polls supervisory body, the Election Commission of Pakistan (ECP). The CEC presented a report about measures to curb horse-trading at the polls.
Justice Ahsan said the political parties should be represented according to their proportion. “If senators are not elected in accordance with the strength of political parties in the provincial assemblies then the system will collapse,” he said.
He asked the CEC what steps the ECP has taken to ensure proportional representation. “What will the ECP do in case of a disproportionate representation of any party?” he asked. The judge said the ECP will be responsible if a party receives a lesser number of votes.
"It will be ECP's failure if a party doesn't win seats proportionate to their representation in the provincial assemblies. The selling of votes would destroy the concept of proportionate representation [in Senate]," he noted.
The judge said the ECP has the power to ensure that the votes are not sold however it says that it would take action after they are stolen.
“How will the process of legislation take place if the parties get fewer seats than their proportion? The money earned from the sale of narcotics and other ill practices is used in buying votes.” He also referred to the Black Law Dictionary for understanding the meaning of proportional representation.
The CEC stated that legislation will be required to ensure proportional representation of parties as well as to trace a ballot. The ECP counsel told the top court that the meaning of secret voting is that the votes will remain secret. He added that the votes casted cannot be revealed to anyone ever.
Justice Ahsan, however, noted that a vote cannot remain secret forever and secrecy in Senate elections is not absolute therefore the ballot should be traceable. "To keep the votes secret forever is not as per the Constitution, neither it is [conveyed] in the court's previous decisions."
Chief Justice Gulzar Ahmed, who presided over the bench, wondered how the party, which could elect 10 senators in view of its strength in the provincial assemblies, managed to elect 15 senators.
“The ECP must be aware of the history of Senate elections,” he added in a reference to the allegations of horse-trading leveled almost after every election of the upper house.
CJ Ahmed asked the ECP what it would do if a party won more seats in the Senate than its proportion. “How does the ECP determine that the polls have taken place with the proportionate representation?”
The counsel said that the authority cannot stop anyone from exercising their right to vote. “Without open voting, the elections would rather be selections. To reveal the vote, there will be a need to amend the Article 226 of the Constitution,” he said.
Justice Gulzar asked if Senate elections will stand ineffective in case there is disproportionate representation. “The voting can be secret but each party should only get a deserving number of seats.”
He noted that there must be a system in place to know if a turncoat will cast his or her vote. “How do those who buy the votes ensure that they will be cast,” he said, asking the ECP to be cognizant of its duties as it is the question of the country’s fate.
Speaking on the occasion, Attorney General of Pakistan (AGP) Khalid Javed Khan said, “the ECP must wake up from its slumber; all state institutions are to abide by the authority’s stance.”
Khan claimed that bidding for the upcoming Senate election is underway and people have already set aside the money to be used for horse-trading. However, the lawmakers are at present afraid of the Supreme Court, he added.
The AGP said the ballot papers can be inscribed with a bar code or serial number. “Horse-trading can’t take place if the counter file and ballot papers have the bar code.” Justice Yahya Afridi, however, asked what would be the need for holding polls if there already exists a proportionate representation.
Subsequently, the court adjourned the hearing of the case till tomorrow (Thursday) when it will hear the points of view of the provinces and political parties.