‘Secret ballot’ or ‘open ballot’ for Senate election: SC urged to give ‘opinion’

ISLAMABAD: The Supreme Court has been urged to give its advice on holding of Senate election.

The President Dr Arif Alvi on Wednesday through Attorney General for Pakistan (AGP) Khalid Jawed Khan filed a reference in the apex court under Article 186 of Constitution seeking opinion of the apex court on the question of law of public importance; “Whether the condition of ‘secret ballot’ referred to in Article 226 of the Constitution is applicable only for the elections held 'under' the Constitution such as the election to the office of President of Pakistan, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate held under the Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41 1 Pat 1, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Election Act, 2017.”

The reference stated, “The elected members of the Assemblies who form the electoral college for election to the Senate are not free agents of their will as such. Having been elected on party ticket, they are bound by party discipline. Therefore, when voting in the election for Senate, they act as agents and trustees of their party. While they are absolutely free to debate within their respective political parties for the selection of candidates for Senate, but once the party has selected its candidates and awarded party tickets, the members owe an obligation to follow the decision of the party and vote accordingly. “If the coming elections to the Senate are yet again marred by vote buying owing to secrecy of ballot as has happened in the past, this would undermine the confidence of the people in democratic process. The interpretation of the Constitution and the laws is the exclusive domain of the judiciary with the Supreme Court as the final court. The requirement of secret ballot for election for Senate is not by way of a constitutional mandate. It is only by way of statutory provisions namely Section 122(6) of the Elections Act, 2017, which may be amended by an Act of Parliament or through an Ordinance promulgated under Article 89 of Constitution.

“Had the framers of the Constitution intended to apply the principle of secrecy of ballot for the Senate election also, they could have easily provided so in Article 59 of the Constitution as has been done in the case of the election of the President where ‘secret ballot’ is specifically mentioned in Clause 12 of the Second Schedule to the Constitution, which provides the procedure and machinery for the election of the President.

“The framers of the Constitution consciously left it to the wisdom of the legislature to frame election laws under Article 222 of the Constitution, and left it to the legislature to provide for secret or open or any other method of voting, as may become available owing to the developments in the technology.

“The hands of the legislature cannot be tied by way of implication or assumption of a constitutional prohibition where none exists specifically.

This is all the more so when the matter does not impinge upon fundamental or vested right of the citizens.

“Secrecy or openness of ballot is only relatable to the machinery provisions of a statute. Thus, the legislature in its wisdom may equally provide for open ballot for election to the Senate by substituting the word ‘secret’ with ‘open’ in Section 122(6) of the Election Act, 2017.

“Even if Article 226 of the Constitution was amenable to two possible interpretations, the Court has always adopted the interpretation which advances greater public welfare and good.”

The AGP submitted that “through acceptance of the interpretation of Article 226 national objectives, including to promote transparency and accountability in the electoral process; acknowledge respect for the choice and desires of the citizen voters; discourage floor crossing, use of laundered money for vote buying in elections, which grossly insult the mandate of the people; empowers the legislature to legislate through ordinary legislation and adopt means most suitable by providing machinery and procedure for ensuring free, fair and transparent elections; and prohibit forever the entry of vote buying undesirable candidates from entering the sacred chamber of parliament, will be achieved.”

Copyright Business Recorder, 2020