Senate polls reference hearing: Vote cannot be secret forever, SC tells ECP

(Karachi) Hearing a case related to the presidential reference for open voting in the upper House of the parliament, Supreme Court of Pakistan observed that a vote in Senate polls cannot remain secret forever. It stated that a political party should only get seats in Senate in accordance with its representation in provincial assemblies.

These observations were made by a five-member Supreme Court bench, headed by Chief Justice Gulzar Ahmed on Wednesday.

During the hearing on Tuesday, the Supreme Court bench had asked Chief Election Commissioner (CEC) Sikander Sultan Raja to consider recommendations presented by Attorney General of Pakistan Khalid Jawed Khan and submit a response to the court.

In its response submitted to the court today, the ECP maintained that according to Article 226 of the Constitution, Senate elections could be held through secret voting only.

The ECP counsel told the top court that the meaning of secret voting is that the votes will remain secret. He added that the votes casted cannot be revealed to anyone ever.

At this, Justice Ijaz said that a vote cannot remain concealed forever. "To keep the votes secret forever is not as per the Constitution, neither it is [conveyed] in the court's previous decisions."

He asked the counsel as to what "proportionate representation" actually meant. He noted that the term open voting is used in terms of the National Assembly elections, but the law doesn't say the same for Senate's polls.

The judge asked how would the electoral authority ensure proportionate representation of political parties in the voting.

"The ECP will be responsible if a party receives lesser number of votes," Justice Ijaz said, adding that, "it will be ECP's failure if a party doesn't win seats as proportionate to their representation in the national provincial assemblies."

"The selling of votes would destroy the concept of proportionate representation [of Senate's seats]," he maintained.

Justice Mushir Alam observed that the matter of secrecy is part of the Elections Act 2017 but the question is to what extent would secrecy be applicable.

The ECP lawyer argued that if "free votes were not given, it would not be an election but a selection".

Justice Alam replied that the secrecy of the vote ended after it was cast. "The ECP can analyse the casted votes in order to end corruption."

Chief Justice Ahmed questioned what steps the ECP would take if a party got more seats in the Senate compared to its representation in the provincial assemblies. He also questioned whether the Senate elections would be illegal if proportional representation was not achieved.

After hearing the arguments, the court adjourned the hearing of the case till tomorrow (Thursday).