ISLAMABAD: Attorney General for Pakistan (AGP) Khalid Jawed Khan has urged the federal government to seek opinion of the Supreme Court regarding holding of Senate elections through an open method rather than a secret ballot.
In a letter to the Secretary to the Prime Minister, Muhammad Azam Khan, the AGP said given the sensitivity of the matter and that there is sufficient time before the next election to the Senate, the federal government may seek clarity on the issue by filing a reference to the Supreme Court of Pakistan under Article 186 of the Constitution.
The Senate election is scheduled to be held in March 2021 to fill the seats as mentioned in Article 59 of the Constitution. Prime Minister Imran Khan has made a public statement conveying the desire of the federal government to hold Senate election by open ballot/show of hands as against secret ballot.
He stated that at present Section 122(6) of the Elections Act, 2017, provides for election to the Senate by secret ballot.
Article 226 of the Constitution provides that all elections under the Constitution other than those of the prime minister and the chief ministers shall be held by secret ballot.
In view of Article 226 of the Constitution, it has been assumed that the elections for the Senate is constitutionally required to be held through secret ballot and unless the Constitution is amended, the election to the Senate cannot be held through open voting/show of hands.
However, the attorney general proposed that there is another view which is that the Senate election is not an election under the Constitution. It is held under Elections Act, 2017.
The elections under the Constitution to which Article 226 refers are election of the president of Pakistan under Article 41(3) read with Second Schedule to the Constitution. Likewise, the elections of the Speaker and Deputy Speaker of the National Assembly and the Chairman and Deputy Chairman of the Senate are elections held under the Constitution.
The AGP stated that Article 226 of the Constitution has been interpreted by different Courts. The Sindh High Court (SHC) in the case of MQM vs Province of Sindh (PLD 2017 Sindh 169) held that the elections to the local government are the elections under Article 226 of the Constitution and must be held by secret ballot.
He said in an appeal against the SHC judgment, a three-member bench of Supreme Court in 2016 through short order held that Local Government elections can be held through secret ballot or through show of hands and the choice is left to the legislature.
However, the determining factor would be the provisions in the applicable statute at the time of commencing/announcement of the elections schedule. He said that three judges who had passed the short order without delivering a detailed judgment have retired.
It is a settled law that in the absence of detailed reasons a short order is the judgement/order of the Supreme Court and is fully binding. Khalid Jawed said if the Section 122(6) of the Elections Act, 2017 was amended through an Ordinance before the commencement of the election schedule/process by the Election Commission of Pakistan, the elections to the Senate could be held through an open method rather than a secret ballot.
Copyright Business Recorder, 2020
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