Arguments centre around secrecy of ballot

Sindh Advocate General Salman Talibuddin has informed the Supreme Court of Pakistan that accepting the presidential reference would be tantamount to amending the Constitution.

The Sindh government’s top lawyer was presenting his arguments before the five-judge larger bench seized with the presidential reference on open ballot for Senate elections.

The federal government through Attorney General for Pakistan Khalid Jawed Khan filed the presidential reference under Article 186 of the Constitution, seeking opinion of the apex court as to whether the Senate elections are held under the Constitution (Article 226) or under the law (Election Act 2017).

The government had contended that the Senate elections are held under the law and therefore there was no need to amend Article 226 of the Constitution.

In view of its contention, the government has already promulgated an ordinance, allowing open ballot in the Senate elections. However, the enforcement of the ordinance is subject to the verdict of the Supreme Court.

Earlier, the government had tabled a constitution amendment bill in parliament to introduce open ballot but it vain.

The judges have raised several questions during the more than 15 hearings. First, the bench focused on the legal question, which is main subject of the presidential reference.

Also read: Senate polls: ECP to grill AGP over use of money remarks in SC

Suddenly, the judges raised the questions over the applicability of Article 218 (3), stating, … it is the duty of the Election Commission of Pakistan (ECP) to organise and conduct election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.

Later, the apex court summoned the chief election commissioner along with all ECP members to inform it about the election scheme to curb corrupt practices in the country.

The CEC, while disagreeing with the majority judges observations, had stated that legislation would be required for identifiable/traceable ballot.

He stated that secrecy of ballot was ‘absolute’. Upon that, the chief justice expressed disappointment. Justice Ijazul Ahsan observed that it was the duty of the ECP to look into the ballot papers of voters when proportionate representation of actual voting strength of the political parties was violated.

Another member of the bench questioned the need to hold the Senate elections, if proportionate representation could not be ensured by the ECP.

On Thursday, the bench focused on the question of absoluteness of secrecy of ballot or whether it was limited to the extent of polling booth.

The Sindh Advocate General Salman Talibuddin raised objections to the maintainability of the reference, saying it was a political question.

He termed allegation of corruption in the Senate elections “hearsay”, saying there was no evidence to prove it. “Secrecy in the polls is absolute in view of Article 226 of the Constitution.”

The chief justice, while referring to the Charter of Democracy (COD), stated that it was admitted fact that vote buy/sale took place in the Senate elections. Even the AGP submitted the lawmakers’ resolution against corrupt practices. “Do you own the CoD,” the CJP asked the Sindh advocate general.

On the Sindh AG’s contention that the court should not involve in political matter, the chief justice observed, “The Constitution, too, is a political document and the court interprets it,” the chief justice observed, asking, “Do we indulge in politics in this way?”

At this, Justice Umar Ata Bandial said that the best evidence of corruption was a traceable ballot of a voter. “If the election commission is unable to access the ballot paper, then Article 225 of the Constitution stands redundant.”

"If prima facie, there is [a] material of corruption, then a tribunal can order examination of the ballot," he maintained.

Justice Ahsan said that "You cannot shut [the] door on the opening of ballots."

PPP Senator Raza Rabbani will start his arguments today (Friday).

On Wednesday, the apex court had 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.