ISLAMABAD: Attorney General for Pakistan (AGP) Khalid Jawed Khan on Wednesday assured the Supreme Court seized with a presidential reference seeking open ballot in the coming Senate elections that the federal government had no intention of bringing legislation for disqualifying parliamentarians over defying party line in the polls.

Rather real purpose behind moving the reference was purification of the electoral process and the best thing to achieve this cherished goal was through open ballot instead of secret ballot, the AGP argued before a five-judge SC bench headed by Chief Justice Gulzar Ahmed.

The bench had taken up the reference through which President Dr Arif Alvi had sought explanation whether the condition of secret ballot under Article 226 of the Constitution applied to the Senate elections or not.

The AGP argued that only through open ballot, the real sovereign, the people, could know in whose favour his elected representative had cast his vote.

Musical chairs to start if successive govts modify procedure of elections, fears judge

He assured the court that the intention behind moving the presidential reference before the court was not to seek disqualification of any member since such punishment must come from the people of Pakistan, the electorates who were the true sovereign, or the political party the lawmaker belonged to.

Justice Ijaz-ul-Ahsan, a member of the bench, noted that there was no legal consequence to prevent any member of the parliament from voting contrary to the directive of his political party. The provisions relating to disqualifications could only be invoked if it was proved that his defiance was motivated with sale and purchase of votes, he added.

The AGP, however, referred to Section 167 of the Elections Act 1997 to suggest that this was the only possible provision which dealt with bribery and other corrupt practices.

When Justice Umar Ata Bandial, another member of the bench, asked why a lawmaker should not be discredited for showing no loyalty to his political party, the AGP said that nothing was more important than the expression by the “sovereign”, adding that at least the people would know about credentials of their representatives.

A sort of musical chairs would start if the government modified the procedure for Senate elections by introducing open ballot and the next government reversed it to secret ballot and so on, Justice Ahsan feared.

“Today Pakistan has a much better democratic society than the martial law of 1950s since no political party has the audacity to say that they are against transparency in the electoral process and we would be at a much better place after consecutive elections,” the AGP said.

Still if some political parties indulged in horse-trading or vote selling, then it was for the political sovereign to deal with it, the AGP emphasised and recalled the “happenings of Changa Manga” which become part of Pakistan’s political lexicon when votes were purchased in 1988 at the time of no-confidence vote against then prime minister Benazir Bhutto. But today no political party could dare repeat this episode because of the free media and growing conscience among the people, Mr Khan said.

Justice Bandial cited a recent statement of the prime minister and wondered how he found out that 20 provincial assembly members of his party had violated the party line during the previous Senate polls.

The AGP replied that a committee was formed which identified the members, but in return a defamation suit was filed against the prime minister by a lawmaker.

When Justice Bandial asked whether the government wanted to end the career of a politician who defied party line, Mr Khan replied in the negative. “Then all is just cosmetics,” Justice Bandial observed, adding that he was expecting that the answer would come in the affirmative.

The chief justice asked what would become of a member of a smaller political party if his party’s head asked him to vote for party A but he said that he would vote for party B.

The voter always wanted that the candidate he had voted for should render services for his welfare and not to bring fortunes for himself, the chief justice observed.

The AGP cited the example of former prime minister Zulfikar Ali Bhutto, saying that he was executed on murder charge but today he was considered a “martyr” and nobody could even say that the Supreme Court judgement of his execution was sustainable.

Citing Article 19 of the Constitution, he said it provided that the citizen voter could command secrecy for casting his vote in elections but such freedom was not available to lawmakers during the Senate elections.

At this, Justice Bandial wondered why no political party had brought any change in the electoral process after the 18th Constitution Amendment.

“This is the complaint I also have,” the AGP said.

Justice Ahsan wondered what the arguments would be in support of secret ballot and the AGP replied that he was also curious to hear the answer from the other side.

“This is also in our mind,” the chief justice observed and asked if the other side wanted secret ballot did it mean that they wanted to have a system of buying and selling of votes.

“There seems no purpose of giving so much independence to lawmakers in electing senators,” Justice Ahsan observed.

“This is perversion and no independence,” responded the AGP.

The case will be taken up again on Thursday.

Published in Dawn, February 4th, 2021