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ISLAMABAD: Contrary to the stance of federal, the Punjab and the Khyber-Pakhtunkhwa (KP) governments, the Election Commission of Pakistan (ECP) and the Jamaat-e-Islami (JI) have contended that the Senate elections are under the constitution and should be held through “secret ballot” as provided in Article 226 of Constitution.

The ECP and the JI on Saturday filed their concise statements regarding the Presidential Reference on Senate elections to the Supreme Court. The JI said the question raised in the Reference is “political”. It has, therefore requested the court to return the reference unanswered, the JI added.

The ECP statement filed through its Secretary Dr Akhtar Nazir said: “Article 59, 219, 224 (3) & (5) of the Constitution provide for elections to the Senate and, “Election of the Senate is election under the Constitution” for the purposes of Article 226 of the Constitution, which says; “All elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.”

A five-member bench, headed by Chief Justice Gulzar Ahmed, will hear the Reference regarding holding of Senate election either through “secret ballot” or “open ballot” on Monday.

It submitted that Article 226 of the Constitution highlights three phrases “all”, “under the Constitution” and “other than,” which are very important.

It said the Reference rests primarily on the interpretation of the term “under the Constitution”, and suggests that an election which was not “under the Constitution”, could be conducted in a manner other than by “secret ballot”.

The ECP said the most ordinary and natural meaning elucidated by Article 226 is that elections “under the constitution” are those elections that are held by or under the authority of the Constitution. The cardinal principle for the interpretation of the Constitution is to be gathered from the constitutional provisions themselves.

Articles 270-B and 270-BB of Constitution provide protection to the elections (Senate) that the same shall be deemed to have been held under the Constitution.

According to the ECP, the incorporation of these articles ratified any irregularities, illegalities, if any, and brought the same “under the Constitution”. Therefore, any other interpretation, would be violative of the constitutional scheme and thus, against the constitutional spirit.

“It is true that power to frame procedural rules for many of the elections (NA & PAs) have been delegated by the Constitution; however the power to frame laws for the procedure of the elections for Senate has also been delegated by the Constitution. If the procedural rules made under powers delegated by the Constitution are to be read as a part of the Constitution, the laws framed under powers delegated by the Constitution must be treated in a similar manner,” said the ECP reply.

It added: Senate elections since the enactment of 1973 Constitution have been held through secret ballot.

The first Senate elections under the Constitution were held pursuant to the Senate Elections Order, 1973 read with the ‘Senate (Election) Rules, 1973’. From 1975 to 2015, the Senate elections were held under the ‘Senate (Election) Act, 1975’. After the enactment of the Elections Act, 2017, the Senate elections were held in March, 2018, through secret ballot in light of Section 122 of the Act. All these Acts and the Rules prescribe mode of election as ‘secret ballot’. Fundamental right of freedom of expression as provided in Article 19 of Constitution would have to be ensured for independent members during voting for Senate elections. Similarly, lone parliamentary member present in the assemblies will confront the identical situation as they cannot be forced to show/share their preferences. The Constitution and applicable laws govern the conduct of a member and not the party discipline.

The term ‘party discipline’ does not have Constitutional or legal significance.

Though it might have some ethical or political importance, a member of the Assembly may be hit by or in terms of Article 63A of the Constitution”.

The ECP submitted that in case of open voting, “an anomaly may surface and that is independent members of the Assemblies who do not fall under any party discipline and they too are the voters for Senate elections”.

The JI’s reply said the reference is not maintainable as it has raised a political question for which Parliament is the appropriate forum.

It submitted that Article 226 and Section 122(6) of Election Act, 2017 are clear and do not require any interpretation.

The JI said as the federal government lacks sufficient numbers in Parliament; therefore, it is trying to use the judicial branch for its political purpose to indirectly amend the constitution and law. It submitted that the apex court should not “enter into the political arena,” as it would likely undermine its neutrality and independence.

Copyright Business Recorder, 2021