ISLAMABAD: President Dr Arif Alvi on Wednesday approached the Supreme Court to seek its opinion whether ‘open ballot’ for Senate elections would help acknowledge the respect of the choice and desire of citizen voters.

In an 11-page reference under Article 186 of the constitution, which relates to the advisory jurisdiction of the Supreme Court, the president has sought an answer to a question whether the condition of secret ballot under Article 226 of the constitution applied to the Senate elections.

Moved through Attorney General for Pakistan Khalid Jawed Khan, the reference was filed soon after the cabinet’s decision to hold elections for the 52 seats that will fall vacant following the retirement of some senators from the 104-member upper house on March 11.

On Dec 15, the cabinet had decided to hold the Senate elections in February as well as invoke advisory jurisdiction of the Supreme Court on open voting.

President’s reference contends secret ballot condition not applicable to electing senators

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 reference 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.

The open ballot will help acknowledge the respect for the choice and desire of the citizen voters, strengthen political parties as well as their discipline which was essential for parliamentary democracy, it said.

The interpretation, as suggested, will also empower the legislature to legislate through ordinary legislation and adopt means most suitable by providing machinery and procedure for ensuring free, fair and transparent elections.

It will demonstrate that the Constitution was a living, dynamic and organic document capable of redressing the ills of the electoral process without repeated amendments to the fundamental document and will promote the principle of dynamic interpretation of the Constitution that reflects the will of the people, the reference said.

Had the framers of the Constitution intended to apply the principle of secrecy of ballot for the Senate elections, the reference contended, they could have easily provided so in Article 59 of the Constitution as had been done in the case of the election of president where the secret ballot was specifically mentioned in Clause 12 of the Second Schedule to the Constitution.

The reference explains that the question of open ballot to the Senate elections had arisen in the context of the malaise of vote buying that had damaged the purity of elections, adding that every Senate election since 1985 had generated debate followed by commitment for reform and promise for the open ballot.

Moreover there is a national consensus amongst all major political parties, jurists, academia, journalists and civil society that the electoral process should be cleansed of the pervasive practice of vote buying in the elections to the Senate, the reference argued.

The desire to stop vote buying through open ballot has manifested itself from time to time in the shape of political manifestos of major political parties, the Charter of Democracy executed in 2006 by two former prime ministers and respective heads of their political parties, the report of the Whole Committee of the Senate in 2016 as well as numerous articles in leading newspapers.

Yet the consensus has not translated into reality owing to shifting political contingencies which ebb and rise from time to time.

The reference argues that unlike the citizen voters in direct elections to the assemblies, the senators have no privilege or justification to claim secrecy of their choice made through the ballot.

If the coming elections to the Senate are yet again marred by vote buying owing to secrecy of ballot as has happened in the past, this could undermine the confidence of the people in the democratic process, the reference said.

Resultantly the crucial reform agenda that the government is desirous of undertaking for the welfare of the people including the strengthening and revamping the role of the regulators and regulatory authorities, reform of criminal laws, the electoral reforms, civil service reforms, reforms for providing expeditious and affordable justice to the people, will most likely remain stalled causing unspeakable hardship to the people of Pakistan.

Hence the gravity and urgency to act and ensure that the coming elections to the Senate are no longer afflicted by the customary malaise of vote buying, the reference said.

Published in Dawn, December 24th, 2020