Senate elections: SC deliberates proportional representation

ISLAMABAD: The federal government informed the Supreme Court on Wednesday that people with bags full of currency notes are sitting in Islamabad, for buying votes of the parliamentarians for the upcoming elections to Upper House of the Parliament (Senate), while the apex court asked the electoral body to define the spirit of proportional representation.

A five-member larger bench of the apex court headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Yahya Afridi and Justice Ijazul Ahsen resumed hearing into the presidential reference.

Attorney General Khalid Javed submitted that although the Election Commission of Pakistan (ECP) in its fresh report stated that it had asked the State Bank of Pakistan (SBP) to see the transfer of money, but this time, the money would not be transferred from the SBP.

“This time the mode of payment in the Senate elections has changed, now payments are also being made in Dubai through hundi and the rates is double as well,” the AG told the court. The attorney general informed the Supreme Court that people with bags full of currency notes are sitting in the federal capital for buying the votes to reach the Upper House of Parliament in the upcoming Senate elections and they are waiting for the apex court verdict.

Earlier, in pursuance of the court’s direction, Chief Election Commissioner (CEC) Sikandar Sultan Raja submitted a fresh report pertaining to steps taken to guard against corrupt practices in terms of Article 218(3) of the Constitution.

The CEC said that in pursuance of the court’s directions, the commission in its meeting held on February 16 deliberated on the mechanism to guard against corrupt practices.

The court earlier had expressed dissatisfaction over the commission report and had directed the CEC to deliberate on the mechanism for discouraging the corruptpractices in the upcoming Senate elections.

In its fresh report, the ECP submitted that according to Section 81 of the Elections Act 2017, election under this act shall be held by secret ballot subject to the provisions of sections 93, 94 and 102, adding that Section 185 of the Act provides punishment for breach of secrecy and the Election Commission deliberated the secrecy of ballot in the light of Section 81, Section 185 and Article 226 of the Constitution.

“Secrecy means complete secrecy, perpetual and not be shared,” says the ECP fresh report, stating that making the ballot paper identifiable with any mark will be breach of secrecy of the ballot and violation of Article 226. However, the ECP submitted that it will implement the decision of the Supreme Court or any amendment made by the Parliament in letter and spirit in this regard.

Justice Ijazul Ahsen observed that secrecy is not absolute. What does secrecy means in view of elections to National Assembly and Senate,” he asked, adding that Article 59(2) of the Constitution says that election to fill seats in the Senate allocated to each province shall be held in accordance with the system of proportional representation by means of the single transferable vote.

“Any party having any strength in the provincial assembly must be reflected in the elections to the Upper House of the Parliament (Senate) and if the said reflection of proportional representation does not mirror in the Senate, the Election Commission would be responsible for that breach of strength,” Justice Ijazul Ahsen said.

Justice Mushir Alam observed that the condition of secrecy comes to an end after casting the vote, and the Election Commission could review the votes cast in elections to curb the corrupt practices.

Chief Justice Gulzar Ahmed asked the CEC that suppose if any party emerges successful in Senate elections by securing more votes than its real strength of proportional representation in the provincial assembly, what will the Election Commission do?

Justice Ijazul Ahsen observed that if any party wins more seats in the senate election than its proportional strength, the system will be completely jammed for which the ECP would have to be made accountable.

Sajeel Ahmed, counsel for the Election Commission, replied that a member of the Parliament could not be restrained from exercising his or her right of vote independently. The counsel contended that the elections to the Upper House of the Parliament would become selection if the lawmaker was denied the right of exercising his/her vote independently.

“You have to ensure that the spirit and requirement of proportional representation is followed as required by law and Constitution,” the chief justice asked the counsel for ECP, and further inquired as to how results of the Senate elections come disproportional when it is proportional?

“How will you define the spirit of proportional representation and please assist us in accordance with the Constitution not as per your view,” Justice Umer Ata Bandial asked the counsel.

Justice Bandial observed that the concept of proportional representation rests with the party’s strength in the provincial assembly and all the parties have its equal representation of seats in the provincial legislature so its strength should also be ensured in the Senate.

Justice Yahya Afridi observed that elections would not be needed if there was proportional representation. Justice Ijazul Ahsen observed that the secrecy of votes end at the polling stage and after the voting, it becomes as “Amanat”, with the Election Commission and it is the constitutional obligation of the commission to find out as to whether any violation has been made or not.

The chief justice asked the attorney general that if the proportional representation of any party was not reflected in the Senate than what remedy is left to that party? The attorney general replied that in such a situation the Election Commission should write to the party’s head asking if it has entered into an agreement of seat adjustment with another party or his MP has made violation.

The attorney general said that the Election Commission is sleeping and its time to wake up and fulfil its constitutional obligation. The chief justice asked the CEC as to what he has done so far.

“Let’s we do it,” the CEC said, to which the chief justice said it should have been done before. “You have unlimited powers but you are taking it as casual,” the observed. “Try to understand commissioner,” the chief asked the CEC.

Later, the court adjourned the hearing for today (Thursday) wherein former chairman Senate Raza Rabbani will commence his arguments. Meanwhile, the fresh report submitted by secretary ECP stated that it has prepared an affidavit to be submitted by each candidate to ensure that he/she has not indulged in any corrupt practice.

Similarly, the report stated that the commission has also prepared code of conduct for the political parties, candidates, election agents and voters and the draft has been sent to heads of parliamentary parties having representation in the Parliament/assemblies for deliberations and finalisation during a consultative meeting scheduled to be held on February 22.

The Commission also has constituted a vigilance committee having representation from Election Commission/convener and FBR, FIA, NAB, SBP, and Nadra as members to assist the commission in the discharge of its duties, and has formulated terms of reference for the committee.

In order to ensure free fair and transparent elections under Article 218(3) read with Article 220 of the Constitution, the digital facilitation centres have already been established since announcement of schedule of the Senate elections 2021 at the ECP Secretariat and all four provincial election commissioner offices.