• Citing BHC, FSC rulings, Sindh says secrecy of ballot ensures sanctity of vote
• Article 63A is intended to deter horse-trading and floor-crossing, SC told

ISLAMABAD: The Sindh government on Monday took the plea before the Supreme Court that the presidential reference seeking open ballot in the upcoming Senate elections was a result of political expediency and, therefore, the question raised cannot be termed a “question of law”.

“In the circumstances, the moral suitability of the question for an opinion under the advisory jurisdiction of Article 186 of the Constitution is questionable,” the Sindh government contended in a synopsis, adding that the apex court should decline to offer its opinion for reasons of judicial propriety. The synopsis was moved through Advocate General Salman Talibuddin.

Headed by Chief Justice Gulzar Ahmed, a five-judge Supreme Court bench, which is hearing the presidential reference seeking the court’s opinion whether the condition of secret ballot under Article 226 of the Cons­titution applies to the Senate elections or not, had solicited synopsis from each province, the Election Commission of Pakistan (ECP) and individuals interested in the matter.

In its reply, the Sindh government contended that it could safely be discerned from the discussion on different provisions of the Constitution that the elections to the Senate are elections “under the Constitu­tion” as expressed by a plain and ordinary reading of Article 226 of the Constitution.

The insertion of the word “held” in Article 226 would lead to an absurd and illogical conclusion, which is beyond the intention of the legislature and in conflict with the democratic values of free and fair elections encoded in the Constitution, argued the Sindh government.

Undoubtedly, the Senate is elected under the Constitution and the Elections Act 2017 merely provides the procedure for holding the election, as mandated by Article 218 of the Constitution, it said, adding that any provision of the Elections Act that regulates the conduct and manner of the Senate elections must comply with the constitutional requirement of voting by secret ballot as prescribed by Article 226.

Voting by secret ballot has been widely and universally recognised as a fundamental principle of free and fair elections, the Sindh government highlighted and went on to say that the merits and de-merits of the secret ballots have also been discussed in several cases in Pakistan.

The Federal Shariat Court (FSC) repelled the contention that secret ballots were in any way un-Islamic, it reminded, adding that the apex court also held that the ‘secrecy of the ballot ensured sanctity of vote’ and safeguards against intimidation.

Besides, the practice of horse-trading was also brought to the attention of the Balochistan High Court (BHC) as the specific reason for removing the secret ballot requirement and it was recognised that voting by show of hands could be equally problematic and in fact may even encourage horse-trading.

Due to the existing varying opinions on the subject and the form in which the reference had been framed, there was no clear basis for the apex court to ascertain whe­ther there was, as urged in the reference, a political necessity for open ballot voting to advance the ‘larger national objectives’, the Sindh government emphasised.

It is crucial to highlight that Article 63A of the Constitution deals with inter alia horse-trading, according to the synopsis. This provision essentially restricts the voting power of the members of parliament or the provincial assemblies by making them bound by the decision of the party head.

As such, Article 63A is expressly int­en­ded to deter practices of horse-trading and floor-crossing and is available as a remedy to eliminate such practices, the Sindh government said, adding that in view thereof, it is wholly improper to suggest, as the referen­ce does, that the evil of horse-trading could only be remedied by an interpretation of Article 226 by the Supreme Court or the court can allow voting by open ballot in the Senate through an amendment to the Elections Act.

In fact, the interpretation of Article 226 as proposed by the reference may even render Article 63A of the Constitution redundant when imputing redundancy to a provision of the Constitution in such a manner must be carefully avoided, argued the Sindh government.

About the comparative analysis with India as set out in the reference, the Sindh government contended, though informative, it was not reliable in the context of the question. This is because the Indian constitution does not contain any provision that is pari-materia (same subject matter) with Article 226 of the Constitution, it argued, adding that it was a settled law that a decision may not be given on a law with reference to the provisions of another law which were not comparable.

Therefore, the Supreme Court should refrain from relying on the comparative analysis with the Indian constitution in the determination of the question, pleaded the provincial government. It said the principles of free and fair elections like the universal free, equal and direct suffrage, proportional representation, first-past-the-post voting, transparency and secrecy of ballot have been encoded in various parts of the Constitution.

Published in Dawn, January 26th, 2021