Chief Justice of Pakistan (CJP) Gulzar Ahmed on Wednesday observed that matters related to ballot secrecy had been left to the parliament and would be decided by it.

During the hearing on the presidential reference on holding Senate elections through open ballot, being heard by a five-member bench of the top court, CJP Ahmed said: "We are not the parliament and neither can we reduce its authority."

He remarked that party leadership has no role in democracy; decisions are taken by the political party [as a whole], not the leadership.

"Nobody can enforce their decisions. Party decisions should be taken in a democratic manner. The Constitution mentions parties, not their leaders."

The chief justice observed said it has to be seen how parties decide who to vote for. "Do parties have minutes of their meetings?" he asked.

The CJP said the court had three questions in front of it.

• Is Article 226 applicable to the Senate elections or not?
• Can proportional representation be done through single transferable vote?
• Are elections conducted according to the Constitution secret?

Continuing his arguments, PPP lawyer Senator Mian Raza Rabbani pointed out that examples presented in the apex court were related to the lower house of parliament whereas the presidential reference was concerned with elections in the upper house.

"A vote is the secret of the voter which he can share with another voter but not the state. The Constitution mandates that no pressure of any kind be brought on the voter. If the vote is made identifiable, then it will no longer be [only] the voter's secret."

He went on to add that if the court had decided on open ballots, then the upcoming Senate elections would be held under a "temporary law" that was already present in the form of the presidential ordinance.

He clarified that he was talking about a Constitutional matter and not the presidential ordinance. "According to the Constitution, Senate elections cannot be held under a temporary law."

Rabbani told the court that the Constitution had kept the vote secret and assured the voters' independence. "Keeping it secret is the voter's right and making the ballot identifiable amounts to reducing their independence," he argued.

"The question is whether the ballot is secret or not. Ballot is not secret but when it comes into the hands of the voters, its secrecy starts [...] Even state officials cannot see who the person has voted for."

Talking about the court's concern on the point of proportional representation, Rabbani said political parties have proportional representation in the National Assembly whereas provinces have proportional representation in the Senate.

Justice Ijazul Ahsan observed that Rabbani's arguments were applicable to elections for NA seats which had a system of "free votes" that ensured the voters' independence.

"[The word] free has not been used for Senate polls so it is not necessary to have secret ballots [in its election," he remarked, adding that if the concept of proportional representation was kept in mind, then there was no need to keep the votes secret.

He asked Rabbani whether he would consider it correct if the parliament passed legislation on holding Senate elections through open ballot.

"Is every MPA (member of the provincial assembly) free to vote [for who he wants]? Do international agreements call for holding Senate elections through open ballot?" the SC judge questioned, adding "The Supreme Court is not bound to any international agreement."

Govt filed reference for 'political objectives'

Farooq H. Naek, who was representing PPP-Parliamentarians, contended if parliament passed a law that was in violation of the Constitution, the Supreme Court could declare it to be "illegal" as it had done in the past.

"According to Article 226 of the Constitution, no voter can be forced under any condition to open their ballot. The court is hearing the matter in an advisory capacity [and] it has to answer in legal terms, not political."

He claimed that the government had filed the reference not for interpretation of the law but for "political objectives".

Naek said that Senate elections were held through closed ballot and all MPAs cast their votes in their individual capacities, adding that if votes are cast individually, then balloting could be secret.

"Parties provide lists for specific seats. It is not necessary to follow the party line in Senate elections," he further said. My arguments will be based on the law, not the 'deep state', he added.

Responding to Justice Ahsan's earlier question, Naek said that political parties did have minutes of their meetings. "Voting on different bills takes place regularly in the parliament, sometimes the opposition votes for the government, sometimes the government votes for the opposition."

He informed the court that debate on secret vote was held for the Election Act, 2017 during which all parties, including the PTI, supported secret ballot.

"If secret voting is ended, it would be a setback for democracy," he concluded.

'Serious political crisis'

Counsel for the Sindh High Court Bar Association (SHCBA), Salauddin, termed it a "serious political crisis", saying the SC should deal with the matter carefully.

"The matter of accepting Bangladesh or not also came to the court but it kept itself separate. By not giving a Constitutional answer on the [matter], the Supreme Court demonstrated judicial wisdom. [It] should also demonstrate judicial wisdom in the current case and keep itself separate."

The incumbent government had placed its political responsibilities and burden on the court, Salahuddin added. He also cited the example of the Indian Supreme Court which had refused to "take the burden" of the Babri Mosque case.

"The presidential reference on Senate elections is illegal. The government is playing with the judiciary. The court should throw out this case."

He said the attorney general of Pakistan had informed the court of the changes that should be made to the law but not what the law was. "The other side of whether malintent increases or decreases due to secret ballot should also be seen."

He claimed that the attorney general had tried to "bulldoze his opinion" on the court instead of asking for its opinion and hidden facts.

He said that the Constitution had not laid out the process of elections, adding that even if Article 226 did not exist, presidential elections would be held secretly.

Dangers of open ballot should be analysed, he said.

Salahuddin said that Pakistan's Constitution was based on Western legal traditions, adding that parliamentarians in developed countries disagree with party lines at times.