ISLAMABAD: The Supreme Court has constituted a five-judge larger bench to commence from Jan 4 next year hearing on a presidential reference seeking the court’s opinion whether ‘open ballot’ for Senate elections would help acknowledge the respect of choice and desire of the citizen voters.

The larger bench will be headed by Chief Justice Gulzar Ahmed and will include Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz-ul-Ahsan and Justice Yahya Afridi. Attorney General Khalid Jawed Khan will represent President Dr Arif Alvi.

AG 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 answer to the question whether or not the condition of secret ballot under Article 226 of the Constitution applied to the Senate elections.

President has sought court’s opinion whether condition of secret ballot under Article 226 applies to upper house 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.

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 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.

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 is 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 says. It will also prohibit forever the entry of vote buying undesirable candidates from entering the sacred chamber of parliament, it adds.

Had the framers of the Constitution intended to apply the principle of secrecy of ballot for the Senate elections, the reference contends, they could have easily provided so in Article 59 of the Constitution as has been done in the case of the election of president where the secret ballot is 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 has arisen in the context of the malaise of vote buying that has damaged the purity of elections, adding that every Senate election since 1985 has generated debate, followed by commitment for reform and promise for the open ballot.

Moreover, it argues, 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.

Published in Dawn, December 30th, 2020