SC reserves decision on Senate open ballot reference

AGP maintains that examining the ballot papers would not lead to a violation of secrecy

The Supreme Court (SC) has reserved its decision in the presidential reference on the matter of holding the upcoming Senate elections through an open ballot method after the aforementioned reference sought the apex court’s insight into the matter.

The hearing was overseen by a five-member larger bench headed by Chief Justice of Pakistan (CJP) Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz Ul Ahsan and Justice Yahya Afridi.

During the hearing, Pakistan Bar Council’s (PBC) lawyer Mansoor Usman Awan argued that holding elections through an open-ballot system has been unprecedented in Pakistan, adding that the secrecy of casting votes is the essence of elections.

“The allegation of corrupt practices has to be separated through evidence [and] cannot be associated with ballot papers.”

The CJP maintained that the passing of resolutions to ensure transparency was the prerogative of the parliament and that the top court would only offer its opinion of the application of Article 226 in the matter.

“All parties demand transparent elections but no one is ready to take an initiative,” CJP Gulzar Ahmed said. “We have been hearing from day one that the party decides which candidates to vote for.”

Justice Ijazul Ahsan remarked that there is no court verdict concerning the implementation of Article 226 in the Senate elections. Justice Ahsan added that only polling procedure is mentioned in the Election Act, and it is mentioned nowhere that the Senate elections will be held according to the law.

“If the connection between the amount [of money] and the ballot paper is established, the election commission should note it,” Justice Ahsan added.

Justice Umar Ata Bandial observed that the ‘real purpose’ was ending corrupt practices.

The PBC lawyer argued that the National Assembly (NA) elections were held on an overall basis, while those in the Senate were based on proportional representation.

To this, Justice Ahsan inquired how Article 51 of the Constitution – which pertains to the NA elections – could apply and ensure proportional representation upon specific seats. He observed that the quota for specific seats aligns with the representation of parties in the lower house.

Awan replied that the election commission took lists from political parties for election on specific seats beforehand and the names on the list are then scrutinised according to the principle of proportional representation.

When asked by Justice Bandial if he meant to say that all elections are held according to Article 226, Awan argued that all elections would be affected should the Senate election be conducted through an open ballot.

He maintained that the term election itself referred to a secret ballot method. “It is necessary that every vote be secret,” he stressed.

Elaborating on the concept of proportional representation, the PBC lawyer gave the example of the Balochistan Assembly which he said had a total of 65 members.

“In every election, there are 10 political parties and one independent candidate [out of which] only three political parties hold a majority. What would happen to the other parties? They could unite and change the situation. Any alliance in Balochistan could change the situation.”

Attorney General of Pakistan (AGP) Khalid Javed Khan said the deep states always believes in secrecy and not transparency. The AGP added that this was the most important case of his life.

The chief justice at this point reminded the court that the presidential reference inquired only into the matter of Article 226, which deals with the declaration that all elections but those of the premier and chief ministers would be held through secret ballot. He maintained that the court would not go out of the bounds of the reference.

“Political parties are accepting [that there are] corrupt practices in the election process. You saw the video, you want to repeat that?” the CJP questioned, further asking if there was a reason why a constitutional amendment was not being done to end corruption in the election process, going on to observe that resolutions were passed by the parliament to make the election process transparent.

The chief justice said the Election Commission of Pakistan (ECP) was a “guard against malintent”. He pondered what role the ECP could play to prevent corrupt practices if voters made secret agreements behind closed doors.

Justice Ahsan said the election commission was “sleeping and was not willing to wake up”, observing that the election commission did not only have to hold elections but end corruption in the election process.

During the hearing, Lahore High Court Bar Association (LHCBA) lawyer Khurram Chughtai said that the federal government lacks the relevant authority to seek an opinion from the apex court.

To this, the CJP said that the reference in the court has been sent by the president of Pakistan.

Khurram Chughtai maintained that the AGP is the advocate of the federal government and not the president, adding that opinions were sought from all political parties before drafting the Election Act.

He pointed out that the incumbent Interior Minister Sheikh Rasheed Ahmed, sitting President Dr Arif Alvi, and current Information Minister Shibli Faraz were also members of the Election Act Committee, while 89 meetings were held before drafting the Act.

Khurram Chughtai added that President Arif Alvi himself was a member of the Constitutional Reforms Committee, along with many of the sitting ministers in the cabinet.

Chughtai also said that the president of Pakistan has to act on the advice of the cabinet or the prime minister, on which the CJP told him to limit his arguments to the questions raised.

The attorney general maintained that examining the ballot papers would not lead to a violation of secrecy.

Justice Yahya Afridi questioned whether the court’s opinion on the presidential reference would be considered final to which the AG replied that the government would be bound by it.

The presidential ordinance, which amends sections 33, 86 and 122 of the Election Act 2017, was announced with immediate effect. It has been strongly opposed by the opposition. Its enforcement will be subject to the outcome of the apex court’s decision, which has been reserved today.


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