The Supreme Court on Monday issued notices to the advocates general of all four provinces and the Islamabad Capital Territory on a presidential reference seeking the court's opinion on whether 'open ballot' for Senate elections would help acknowledge the respect for the choice and desire of the citizen voters.

A five-member bench headed by Chief Justice of Pakistan (CJP) Gulzar Ahmed also issued notices to the speakers of all provincial assemblies, speaker of the National Assembly, Chairman Senate, and the Election Commission of Pakistan (ECP).

Attorney General of Pakistan Khalid Jawed Khan had on Dec 23 moved the 11-page reference under Article 186 of the Constitution relating to the advisory jurisdiction of the Supreme Court.

The president had sought the court's advice on whether the condition of secret ballot under Article 226 of the Constitution applied to the Senate elections.

The reference was filed soon after the cabinet’s decision to hold the elections for 52 seats that will fall vacant, following the retirement of some senators from the 104-member upper house of parliament on March 11, 2021.

The cabinet had on Dec 15 decided to hold the Senate elections in February and invoke advisory jurisdiction of the Supreme Court on open voting.

During today's hearing, the larger bench which includes the CJP, Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz-ul-Ahsan and Justice Yahya Afridi, in a short order also directed that notices be published in newspapers to seek the public's opinion on the matter.

In addition to this, the apex court also asked senior advocate, Hadi Shakeel, from Quetta to appear and assist the court as amicus curiae.

The bench directed AG Khan and provincial advocates general to submit written synopses to the court. Any other party interested in being a part of the case can also file petitions in the Supreme Court, the order said.

The case has been adjourned till Jan 11.

Details of reference

The reference states the belief 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 suggests 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. 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 is 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 emphasises 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, 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 is essential for parliamentary democracy, it says.