Senate seats be proportionate with PA seats: SC

ISLAMABAD: The Supreme Court on Wednesday observed that a political party should get the number of seats in the Senate that is commensurate with its seats in provincial assemblies and if any party won seats out of proportion, the system could collapse.

The court observed this while hearing a presidential reference seeking the top court’s opinion on open balloting for the upcoming Senate elections. A five-member larger bench comprising Chief Justice Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz Ul Ahsan and Justice Yahya Afridi heard the reference.

During the proceedings, Chief Election Commissioner (CEC) Sikandar Sultan Raja appeared in court and submitted a revised reply of the Election Commission of Pakistan (ECP) before the bench.

The counsel for the ECP said the Senate elections were held under Article 226 while Article 218 authorised the commission to hold transparent elections. He said: “The interpretation of Article 218 does not defuse Article 226 and does not limit the secrecy of Article 226.”

The ECP’s lawyer said keeping the votes secret means that they would “always remain secret”, and the cast votes “could never be shown to anyone”. Justice Ijaz Ul Ahsan remarked that the vote “could not be kept secret forever”. “It is neither in the Constitution nor in court decisions to keep the vote secret forever,” he added.

Justice Ahsan asked the meaning of proportional representation. “The seats of the political party in the Senate should be commensurate with the seats in the provincial assembly,” he added. He said the words “free vote” is used in National Assembly voting, while the words “free voting” are not included in the law for Senate elections.

He then asked how the ECP would ensure proportional representation. “Every political party should get seats in Senate elections according to its proportion and if a party gets fewer seats, the election commission would be responsible. The selling of votes will violate the principle of proportional representation,” he added. He said if a party won seats out of proportion, the system would be “destroyed”. The Chief Justice asked what the election commission would do if any party won more Senate seats than the proportion. He also asked how the election commission would determine that elections are held with proportional representation.

The ECP counsel responded saying no one could be prevented from exercising their right to vote. He also said Article 226 required to be amended in order to view the vote.

The Chief Justice said the Pakistan Muslim League-Nawaz (PML-N) lawyer should be in the court tomorrow (Thursday) and the case would end at any time. He added that the court would hear the Pakistan Bar Council only on the independence of the judiciary and the supremacy of the Constitution. He stressed that the court “would not hear political arguments of Pakistan Bar Council”.

Justice Gulzar then asked whether the Senate elections would be annulled due to a lack of proportional representation. Voting could be secret, but the seats must be according to the proportion, he added.

He said “vote buyers” would also have a “system to check whether the seller would vote or not”. He said the election commission knew, but was not telling to the court. He asked how vote buyers “make sure they would get votes”. “The fate of the country is in the hands of the Election Commission and it should understand its responsibilities,” he added.

Justice Ahsan said the election commission “has the power” to stop vote selling but the commission says it will take action after the theft. He asked if political parties got fewer seats than the proportion, then how would the legislation be. He added that “drugs and ill-gotten money” was used to buy votes.

The Attorney-General said the election commission “must wake up”. All state institutions were bound by the word of the ECP, he added. He said “bar codes or serial numbers” could be written on ballot papers. “Horse-trading can be discouraged if there is a bar code on the counter file and ballot papers,” he added.

After completion of the Attorney-General’s arguments, Khyber Pakhtunkhwa’s Advocate General Shumail Butt said members of the assembly could not vote in Senate elections of their own choice. “Proportional representation means numerical representation of the provincial assembly in the Senate,” he added.

Justice Yahya Afridi then said if there was proportional representation then what was the need for elections. Later, hearing of the case was adjourned till Thursday (today).