Senate elections by open ballot: Hectic 13-month-long activity culminates in contentious ordinance

ISLAMABAD: A host of intense activity, kick-started by the federal government 13 months ago, has culminated in the promulgation of a controversial conditional presidential ordinance prescribing an open ballot in the Senate elections.

On January 28 last year, the federal cabinet constituted a committee to formulate recommendations regarding electoral reforms. The aim was to amend the Constitution and the Elections Act 2017 to allow for a number of measures: an open ballot in the Senate polls, voting rights for overseas Pakistanis, permitting dual nationals to conditionally contest elections, among several other changes in the two statutes.

Based on the proposals of the committee, the cabinet approved the reforms package which was incorporated in two bills. On October 29, 2020, the government moved the 26th constitutional amendment bill in the National Assembly, which was referred to the standing committee on law and justice for consideration. It amended Article 59 of the Constitution specifying an open ballot in the Senate polls. It also changed Article 226, with the amendment stating that like the election for the prime minister and chief ministers, the Senate polls would also be held through an open vote.

The bill also altered Article 63. The amendment dispensed with the requirement that a Pakistani national, who has acquired the citizenship of a foreign state, is barred from contesting elections. Instead, it added that such a dual national, after his electoral victory, would provide as conclusive proof a certificate of renunciation of foreign citizenship before taking oath. This meant that the dual nationality holder was permitted to contest elections but was barred from taking oath as a lawmaker until he gave up his foreign citizenship.

On October 16, 2020, the government tabled in the National Assembly a comprehensive package of amendments in the Elections Act, including Senate elections through an open vote.

While the two amendment bills were lying unattended in the lower house of parliament, the government, on December 23, 2020, moved a presidential reference in the Supreme Court, invoking its advisory jurisdiction to elicit its opinion on the issue of Senate polls through open ballot.

The reference argued that the condition of secret ballot referred to in Article 226 is applicable only for elections held 'under' the Constitution, such as the election to the offices of the president, speakers and deputy speakers of parliament and provincial assemblies and "not to other elections such as the election for the members of the Senate" held under the Elections Act.

Prior to the submission of the reference in the apex court, the federal cabinet decided that the upcoming Senate polls would be held by open ballot.

On January 31, the standing committee approved the constitutional amendment bill in less than half an hour and recommended with a majority that it may be passed by the National Assembly. The opposition members opposed the sudden voting on the bill and protested what they termed the ‘bulldozing’ of the proposed legislation. However, committee chair Riaz Fatyana, belonging to the Pakistan Tehreek-e-Insaf (PTI), sought the consent of the participants, paving the way for its passage.

On February 3, the government made a determined effort to present the committee report in the National Assembly and get the bill passed -- but in vain. This caused an unparalleled ruckus in the assembly. In the pandemonium, the attempt to table the bill stood frustrated, and the session was prorogued sine die. Speaker Asad Qaisar has now issued show cause notices to the allegedly rowdy MPs.

While this commotion was still fresh in memory, the government on February 6 abruptly issued the presidential ordinance, which called for an open ballot in the Senate elections. However, its implementation was made conditional to the decision of the apex court on the presidential reference.

The ordinance caused another deafening political uproar with calls to withdraw it as it was, according to opposition, an attempt to influence the highest judicial forum. Two days later on Feb 8, the Jamiat-e-Ulema-e-Islam-Fazl challenged the ordinance in the Supreme Court dubbing it as unconstitutional and illegal.