The government on Saturday promulgated a presidential ordinance to make amendments to the Election Act, 2017, to hold Senate polls through open vote.
However, according to a provision of the ordinance, its application is conditional on the Supreme Court's advisory opinion on whether secret balloting as mentioned under Article 226 of the Constitution includes the Senate election.
The government has already filed a reference with the apex court, asking for its interpretation on the relevant article. If the SC interprets secret balloting referred to in Article 226 to also include Senate elections, then the ordinance will not hold since a constitutional amendment will be required to hold Senate polls through open vote.
The Elections (Amendment) Ordinance 202, shared by Information Minister Shibli Faraz on Twitter, stated that the Senate and National Assembly are not in session and the president is satisfied that "circumstances exist" which render the ordinance necessary to take immediate action.
According to the document shared by the information minister, the ordinance shall come into effect at once and extend to the whole of Pakistan.
"In the Elections Act, 2017 (XXXIII of 2017) in section 81, in sub-section (1), for the word "an", the expression "subject to section 122, an" shall be substituted.
"In the said Act, in section 122, in sub-section (6), for full stop at the end, a colon shall be substituted and thereafter, the following two provisos shall be added:
"Provided that in case the Supreme Court of Pakistan gives an opinion in Reference No 1 of 2021 filed under Article 186 of the Constitution that elections for the members of Senate do not fall within the purview of Article 226 of the Constitution, the poll for elections for members of the Senate to be held in March, 2021 and thereafter shall be conducted by the Commission through open and identifiable ballot
"Provided further that after the elections for members of Senate, if the head of the political party requests the Commission to show the ballot cast by any voting member of his party, the Commission shall show the same to the head of the political party or his nominee."
In the said Act, in section 185, for the word "an", the expression "subject to section 122, an" shall be substituted, the presidential ordinance added.
'Ordinance promulgated for clarity's sake'
Speaking to Geo News on the show 'Naya Pakistan', Adviser to the Prime Minister on Interior and Accountability Mirza Shahzad Akbar said that there were two legal opinions when it came to conducting Senate polls through open ballot.
The first was that there needs to be a constitutional amendment for which a bill was moved in the National Assembly, he said. We also moved a reference in the Supreme Court contending that the polls for members of the Senate came under the Election Act 2017, he said.
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.
"If the Supreme court gives their advisory opinion in the affirmative, meaning that the apex court agrees with our interpretation, then there will be no need for a constitutional amendment and by amending the Election Act 2017, open ballot will be allowed for the [Senate] polls," said Akbar.
"Right now the hearings in the top court have not concluded. We anticipate that by next week the schedule for the Senate election will be announced. Once that is announced, changes cannot be made. That is why an ordinance has been promulgated," he said.
"The decision can take a week or two, but if the SC interprets that open ballot can be conducted by changing the law, then we have brought about a change in the law. So this ordinance has been brought for clarity's sake subject to the apex court," he said.
He added that the second opinion on the subject, regarding a constitutional amendment, cannot be done without the opposition's cooperation. "And you have seen yourself what has happened in the National Assembly," he said.
Responding to a question, the PM's aide said: "This is a contingent law not because it is related to an event but because it is contingent on the opinion of the apex court. Now when this ordinance has been promulgated by the president, it will come in front of the SC where its legality and practicality will also come up."
With this the intention has been made clear that the government wants to have transparent polls through open ballot, he said. Not just us, all opposition parties also say that secret ballot is the reason for horse trading, he added.
He also refuted the impression that the government had promulgated the ordinance in anticipation of "disgruntled" MPAs that would not vote for the ruling party.
"This is not the case. Please look at who is saying this. One is Maryam and the other is Bilawal. What is their performance and track record? What position have they held, what services have they rendered?"
He added that there was no weight to such statements and that the opposition was "looking for excuses".
The government on Thursday tabled the Constitution Amendment Bill in the National Assembly to hold Senate polls through the open vote, but the opposition rejected the bill, created pandemonium and the bill could not be approved by the house. The rumpus forced the deputy speaker to prorogue the NA session.
After an abortive attempt to get the bill approved from the National Assembly, the government decided to implement its decision by introducing the presidential ordinance.
A source in the federal cabinet had told Dawn that a summary for introducing the presidential ordinance was approved by the cabinet members through circulation on Friday.
In November last year, Prime Minister Imran Khan had vowed to hold elections for the upper house of parliament through "show of hands", and not by secret ballot, to ensure transparency and eliminate "vote trading".
At present, the opposition is in majority in the Senate and, therefore, many times legislation passed by the National Assembly was bulldozed by in the upper house in the recent past.
The forthcoming elections are, therefore, crucial for the government to secure a majority in the house where polls are held every three years when the term of half of the senators expires.
As many as 52 senators are set to retire — 50 per cent of the 104-member house — on March 11 after completing their six-year tenure. However, this time there will be no polling for the four seats of the erstwhile Federally Administered Tribal Areas (Fata) after its merger with the Khyber Pakhtunkhwa province.
Therefore, polling will be held to elect 48 senators — 12 each from KP and Balochistan, 11 each from Punjab and Sindh and two from Islamabad. Polling will be held to elect seven members on general seats, two women and two technocrats in the four provinces. Besides this, the election on one minority seat each in KP and Balochistan will also be conducted.
When the MPAs will elect senators from respective provinces, members of the National Assembly will be voting to elect a senator on general seat and the other on a woman seat from Islamabad.
The government has already moved a presidential reference in the Supreme Court seeking an open vote for the Senate. However, the Supreme Court is yet to take a decision on the reference, whereas opposition parties have already announced that they will not support such a move from the government at a time when the elections are just a month away.
'Govt is worried'
Earlier today, PPP Chairman Bilawal Bhutto-Zardari said that the government's decision to promulgate an ordinance for holding Senate polls through open vote was a "political indication that it is worried".
He had questioned the government's move, stating that the matter was sub judice. "What is the point behind taking this step? Are you trying to put pressure on the apex court? Or are they feeling [pressure] from the [Pakistan Democratic Movement] and are trying to influence the country's institutions?"
The PPP chairman maintained that as far as passing legislation and making constitutional amendments is concerned, it is the parliament's job.
He stated that the government's current way to going about the whole situation was "undemocratic" and claimed that its intentions were to "rig the Senate elections once again in favour of a selected political party".
"The PDM in its meeting a couple of days ago discussed this issue and we believe that open ballot reforms can only be part of a large comprehensive electoral reforms package" that can only be passed by parliament, he said.