ISLAMABAD: The provinces of Punjab and Khyber Pakhtunkhwa have come out in support of the presidential reference before the Supreme Court seeking an opinion on open ballot for the coming Senate elections.

“It is the considered view of the Punjab that the reference in question may kindly be answered in the affirmative so that by undertaking necessary remedial statutory action, the Election Act 2017 is amended and enable the elections to the Senate to be held through open ballot,” pleads Advocate General of Punjab Ahmad Awais in a rejoinder.

“This provincial government supports the reference No. 01, 2020, sent by the President to this Honourable Court,” says the KP advocate general in his reply.

At the last hearing of the presidential reference on Jan 4, a five-judge Supreme Court bench, headed by Chief Justice of Pakistan Gulzar Ahmed, had asked the advocate generals for the four provinces to furnish their stand on the reference.

Sindh to seek time to inform SC about its viewpoint on the presidential reference

The Supreme Court will resume the hearing of the reference on Monday (Jan 11).

Advocate General of Sindh Salman Talibuddin told Dawn that the province would seek more time for furnishing its reply before the Supreme Court since they had received a copy of the reference on Friday and he still needed to seek instructions from the provincial government.

The Punjab government argued that unlike a citizen voting in direct elections to the assemblies, elected members of the parliament enjoyed no privilege or had no justification to claim secrecy of their choice made through the ballot.

Thus, the parliamentarians who did not wish to toe their party line should resign rather than indulging in the practice of vote selling, the Punjab government said, explaining that elected members of the assemblies who formed the electoral college for the Senate elections were directly elected by the people of Pakistan in the elections held on party basis. In return the elected representatives indirectly elect members of the Senate as provided for in Article 59 of the Constitution.

Punjab highlighted that the question involved in the presidential reference arose on account of the vicious cycle of vote buying in Senate elections by members of its electoral college. This assertion was fortified by the report of the committee of the whole on the mode of elections of members of the Senate in May 2016, it said.

The alleged illegal, immoral and unlawful acts committed by members of the national and provincial assemblies from time to time in Senate election by casting their votes against the party discipline for personal and pecuniary gains had led to the desire to put an end to this menace which shook the basic principles of our democracy, Punjab argued.

A very stringent view of the constitutional requirements of secrecy would not lead to an ideal scheme for securing free, fair and impartial elections, it said, adding where elections were direct, secret voting was insisted upon and where elections were indirect and where members were chosen by indirect means then open balloting could be introduced.

To give effect to the concept of proportional representation (indirect election on party lines), the parliament could suggest open ballot, it said.

The principle higher than that of secrecy of ballot was purity of election and free and fair election, Punjab said, adding if secrecy led to corruption, then transparency had the capacity to remove it.

Senate election was held on party basis in line with the constitution, hence it was necessary to ensure transparency and elimination of corrupt practice in the process of indirect election to the upper house, Punjab said.

Likewise, KP argued that the debate by the framers of the constitution before ordaining the constitution left no doubt about the intention that voting by secret ballot was contemplated only for National Assembly and not Senate.

In Senate, representation of political parties should be in the same proportion as they were represented in the provincial assembly which was only possible if the voters were bound to follow party line, KP said. Both these assertions suggest for open ballot for the senate elections.

The legal aspect which emerged and crystallised to requisite clarity was that not all elections dealt by the constitution were covered by the import and scope of Article 226 of the Constitution and there could be instances where the competent legislature could devise a different course, KP said.

Published in Dawn, January 10th, 2021