ISLAMABAD: The Senate Secretariat has refused to provide ballots of the recently-held election for the chairman of the upper house to the legal team of Pakistan Peoples Party (PPP) but seems to have conceded to the jurisdiction of the court to intervene.

The PPP’s legal team, which also has three former Senate chairmen among its members, comprises Farooq H. Naek, Raza Rabbani, Nayyar Hussain Bukhari, former Punjab governor Sardar Latif Khan Khosa and Javed Iqbal Wains.

The team has sought certified copies of the proceedings of the Senate chairman election held on March 12.

The joint opposition’s candidate, Yousuf Raza Gil­ani, lost the election after seven of his votes were rejected. If they had been counted, he could have defeated Sadiq Sanjrani by one vote.

The team required certified copies of all the activities in the upper house on March 12 to challenge the rejection of votes before an appropriate forum.

The Senate Secretariat remained closed from Mar­ch 15 to 17 on account of disinfection for Covid-19. The Secretariat, in a letter add­ressed to Senator Naek and advocate Wains on March 18, said: “All proceedings of the Senate held on 12th March, 2021, are available in verbatim in the Hansard, that includes decision of the Presiding Officer on votes, declaration of elections to the office of Chairman Senate, and arguments by Senator Farooq Hamid Naek, polling agent for Senator Syed Yousuf Raza Gilani.”

The Secretariat, however, provided details of the proceedings and the transcript to the counsel for Senator Gilani.

It also provided the record of the communication from the Ministry of Parliamentary Affairs regarding the nomination of the presiding officer by President Dr Arif Alvi to the legal team.

However, regarding the report about installation of hidden cameras which were traced ahead of the polling, the Secretariat said, “the cameras, booth and other material were sealed in the presence of senators before the process of election of the chairman began and some of those present there made videos and photographs from their cell phones. The Secretariat made no official video or photographs of the same.”

A certified copy of the ‘Instructions to Senators’ for casting the votes was also supplied to the lawyers.

Rejecting the request to handover ballots, the Secretariat stated: “All ballots were sealed and placed in safe custody on 12th March, 2021, on completion of election process as per practice and application by Senator Farooq Hamid Naek submitted to the secretary the same evening.”

It further said: “In terms of Rule 258 of the Rules of Procedure and Conduct of Business in the Senate, 2012, the competent authority has decided that the ballots are to be de-sealed only if asked for by a court of law.”

It may be mentioned here that the presiding officer for the Senate chairman polls, Muzaffar Hussain Shah, has asked Farooq H. Naek, the polling agent of Mr Gilani, to file a complaint before a tribunal if he was not satisfied with the decision of rejection of votes.

The lawmakers of the ruling Pakistan Tehreek-i-Insaf, on the other hand, have consistently been saying that the proceedings in the Senate cannot be challenged in any court of law.

According to advocate Wains, the Senate letter is self explanatory and has clearly suggested that the court should be approached.

Even otherwise, he said, there are a number of instances where the superior courts have intervened and even over-ruled the ruling of the National Assembly speaker.

He said the case was very simple; “we expect the court to answer the one-line question: whether a stamp within the box of candidate is disenfranchisement of the voter.”

Advocate Wains said bar of Article 69 was not applicable to this case since the presiding officer himself had advised advocate Naek to file the application in the tribunal and the Senate Secretariat had repeated the same stance.

According to him, the petition may be filed anytime next week.

As per Supreme Court advocate Kashif Ali Malik, the superior courts, on a number of occasions, have validated rejected votes.

In 1987, the apex court dealt with the issue of ballot papers on which the prescribed mark to indicate the candidate in whose favour the vote was cast was put outside the area containing the name and symbol of the contesting candidate for whom the voter was supposed to have voted.

In 1966, the apex court had decided an issue where the ballot papers had borne the official seal but no signatures of the presiding officer. Twelve ballot papers contained chits bearing the words ‘Bismillah’ and 14 ballot papers had currency notes enclosed.

The rejected votes were allowed by the presiding officer to be counted as valid votes by the Election Commission of Pakistan (ECP) member. The high court set aside this order.

However, the apex court ruled that unless there was something to reveal a previous arrangement, mere presence of a mark or even 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 does not identify the voter.

In 1981, the apex court decided an appeal in which five votes which were wrongly excluded from the count were re-examined by the returning officer, and accordingly the petitioner was declared as the returned candidate.

It held that any other mark besides the official mark and the prescribed mark would not render the ballot invalid. It ruled that the clear principle for the guidance of presiding officers is that if the ballot paper unambiguously reveals the election of the elector cast his vote in favour of a particular candidate the presence of other marks will not render the vote invalid and the vote will be counted in favour of the candidate for whom the vote appears to have been cast.

In 1988, the apex court decided the issue of marking of ballot papers with Roman numerals instead of English or Urdu numerals. It was held that the votes could only be rejected when with pre-arrangement the identity was disclosed. There is nothing to show that this has been done and there is no such allegation levelled. The intention of the voter is clear as such ballot papers cannot be rejected on this ground.

In 1995, the Supreme Court ruled that where on account of the act of the voter himself the secrecy of the ballot was violated, even in such a case the settled principle of law by the superior courts is that before the rejection of such papers it has to be pleaded first and then proved through evidence that the same was the result of a prior understanding between a voter and the candidate.

Published in Dawn, March 21st, 2021