ISLAMABAD: The rejection of seven ballots during the crucial election to the office of Senate chairman on Friday has triggered a controversy, with some analysts arguing it’s the intention of the person casting a vote that counts but others maintaining that any business conducted inside the two houses of parliament cannot be challenged in any court of law.

When Dawn contacted him for his comments on the matter, just as the newspaper did several other jurists, former attorney general for Pakistan Anwar Mansoor Khan said the election of Senate chairman was part of the business of upper house of parliament, therefore, the rejection of the seven ballots could not be challenged before any tribunal or court.

He contended that the proceedings of the Senate were fully protected under Articles 69 and 60 of the Constitution.

Article 69 says the validity of any proceedings in the parliament cannot be called into question on the grounds of irregularity of procedure. Similarly, Article 60 explains that after the Senate has been duly constituted, it will at its first meeting, and to the exclusion of any other business, elect from amongst its members a chairman and a deputy chairman.

There are judgements given by superior courts on the intention of voters that hold ballots should not be set aside on technical grounds

The former attorney general was of the view that by affixing stamp at a wrong place, the voters (whose ballots had been rejected) violated the condition of secrecy of the ballot because they made their votes identifiable.

For his part, Sindh High Court Bar Association’s president Salahuddin Ahmed was of the opinion that although the Constitution barred challenging any business of the parliament, if an act was committed apparently with mala fide intentions, and no other remedy existed, then a constitutional petition “can always be” filed before a high court under Article 199 of the Constitution.

He cited the 2004 case titled Salahuddin versus Abdul Khaliq, in which Justice Abdul Hameed Dogar, who was then a judge of the Supreme Court, observed that the question of validity of the ballot papers could only be determined by ascertaining the intention of the voters and in that respect the manner of affixing mark/stamp was material.

The main factor involved in the present case was the affixing of mark or stamp upon the name of the candidate, he added.

Mr Ahmed pointed out that a three-judge bench comprising Justice Nazim Hussain Siddiqui, Justice Javed Iqbal and Justice Abdul Hameed Dogar had held that if the mark or stamp was affixed upon the name of the candidate, instead of his symbol, there could not be any hesitation to maintain that the voter had in fact shown his consent to cast vote in his (candidate’s) favour.

With regard to the five votes in question, in which stamp had been affixed on the names of the candidates instead of their symbols in the same column, the judgement authored by Justice Dogar held that the voters (seemed) to have exercised their right of vote in their (candidates’) favour.

In the case titled Sher Afgan versus Aamir Hayat Khan, the Supreme Court had held that the question would depend upon whether or not the mark reasonably and clearly disclosed the intention of the voter to cast the vote in favour of a particular candidate. The bench of the apex court that gave this judgement comprised then Chief Justice Muhammad Haleem, Justice Muhammad Afzal Zullah, Justice Shafiur Rahman, Justice Zafar Hussain Mirza and Justice Ali Hussain Qazilbash.

The judgement also clarified that the law should not be understood to mean that every ballot paper in which the prescribed mark appeared outside the space reserved for the candidate would be a valid vote. The ruling had come on an appeal against the Oct 26, 1986, order of the Election Tribunal, Punjab.

The court held that to permit the counting of a ballot, the voter’s intention must be manifested by a cross substantially in the place designated for it, showing an honest intent to follow the directions of the law.

When contacted, Advocate Kashif Ali Malik said there were a number of judgements given by superior courts on the intention of the voters in which it had been held that the ballot could not be invalidated for technical reasons.

He pointed out that in the 1987 Jamshed Ahmad Khan case, the five-judge bench of the Supreme Court had observed that the cardinal rule to be followed by election officers and the courts in election matters was to ascertain the intent of the voter as disclosed by the official ballot actually cast and to give effect to that intent by counting the ballot.

Similarly, in the 1966 Jamal Shah versus Election Commission case it was held that unless there was something to show a previous arrangement, the mere presence of a mark or “for the matter of that the currency note” on a ballot paper was not sufficient to identify the electors. The existence of a mark in the absence of a proof of arrangement did not identify the voter, it said.

Advocate Malik said the Dr Syeda Sultana Ibrahim versus Mrs Afroz Nazir Ahmad case of 1988 and the Ijaz Ahmad Cheema versus Iftikhar Hussain case of 1995 had explained that before rejection of such papers it had “to be pleaded firstly and then proved through evidence that the same was the result of prior understanding between such voter and the candidate”.

Published in Dawn, March 13th, 2021