ISLAMABAD: The Supreme Court on Wednesday feared that if proportionate representation of actual voting strength of the political parties was not reflected in the March 3 Senate elections, it might result in the collapse of the entire system.

“If some member sells their vote and casts it against the party aspirations, then it would mean that the Election Commission of Pakistan has failed in its obligation to hold the elections in a free, fair and transparent manner by guarding against corrupt practices,” Justice Ijaz-ul-Ahsan observed.

Justice Ahsan, a member of the five-judge Supreme Court bench seized with the presidential reference on open ballot for Senate elections, explained that secrecy in the elections was not absolute and that the seats of the political parties in the Senate had to be in proportion to their strength in the assemblies.

Constitution amendment needed for open vote, says CEC

“When there are distortions in the system, then the entire country suffers because the system is jammed,” Justice Ahsan emphasised. He said the ECP should realise that it had extraordinary constitutional powers and if it failed to perform its duties, the entire country would suffer.

However, the ECP had a different view when its counsel Sajeel Shaharyar Swati said secrecy in the elections meant complete secrecy, perpetual and not to be shared.

According to Section 81 of the Elections Act 2017, elections under this act had to be held by secret ballot and Section 185 of the Act provided punishment for breach of secrecy, he said.

Reading out a report furnished by the ECP, Mr Swati said the commission had deliberated upon secrecy of ballot in the light of different provisions of the Elections Act and Article 226 of the Constitution and arrived at the conclusion that making the ballot paper identifiable with any mark would amount to breach of secrecy of the ballot and violation of Article 226.

However, the ECP would implement the decision of the Supreme Court or any (constitution) amendment made by parliament in this regard in letter and spirit, the lawyer assured the bench.

When Justice Ahsan referred to Black’s Law Dictionary to define the meaning of proportionate representation, the ECP counsel argued that the definition was different from what the court understood.

Advocate General for Khyber Pakhtunkhwa Shumail Butt argued that if the will of the constituents was not represented in the Senate, then it would mean violation of the mandate of the constitution.

At this Justice Yahya Afridi, also a member of the bench, asked Mr Butt whether he was arguing that instead of conducting the elections, selections should be done on the basis of the lists of candidates provided by the political parties while elections could be held among the independent members.

Chief Election Commissioner Sikander Sultan Raja also told the Supreme Court point-blank that a (constitution) amendment was needed for making the ballot open or traceable.

Chief Justice of Pakistan Gulzar Ahmed regretted that the ECP was not realising that the court was trying to assist the constitutional body in the hands of which destiny of the people rested and therefore the commission should not take the matter casually.

Attorney General for Pakistan (AGP) Khalid Jawed Khan came up with different options and suggested that instead of serial numbers, the ECP could go for a unique bar code which could only be available with the commission, adding that this would discourage horse-trading since every voter would know that his vote could be traceable if the need arose.

The AGP said the ECP had learnt about the video clip regarding buying and selling of the votes when it went viral only a week ago when this video had come to light on March 3, 2018.

He argued that if proportionate representation was not reflected, it could be presumed as if vote theft had taken place.

The ECP needed to be proactive instead of waiting for somebody to lodge a complaint, the AGP said, adding that the commission was a “sleeping giant which needs to awake” especially when the entire executive authority was bound to assist it.

The AGP alleged that the ECP had a narrow understanding of Article 226 of the Constitution and that there were people who were sitting in Islamabad and payments were ready to be made to the concerned people but they were waiting for the outcome of the Supreme Court hearing, lest it might frustrate their designs.

Things had become so sophisticated that even commission agents were offering their services to deliver money at the desired place in consideration of some commission and its rate was very high if money had to be delivered in Dubai, he added.

Such transactions were not being done through bank channels but by employing other means, the AGP said.

Petition filed

Meanwhile a petition has been filed before the Supreme Court by Advocate Khurram Shehzad Chughtai requesting the court to return the reference as not maintainable under the advisory jurisdiction of the apex court as its contents and assertions and reasons and grounds pleaded in it are not in conformity with the provisions of the constitution.

The petition says the Supreme Court should give the opinion on the reference that the constitution provides a comprehensive mechanism to ensure minimal deviation from these dictates and that it identifies and regulates one of the key aspects of democracy, the election process.

According to the petition, Article 218 of the Constitution constitutes the ECP and empowers it to organise and oversee the election process and to ensure that it is conducted honestly, justly, fairly and in accordance with the law and that corrupt practices are guarded against.

The petition also seeks a directive that the ECP may adopt any of the internationally recognised protocol for verifiable secret ballot ensuring compliance with Articles 218(3), 222 and 226 of the Constitution read with the Election Act 2017.

Published in Dawn, February 18th, 2021