Open or secret ballot: PPP, PML-N backed out of pact, says CJP

ISLAMABAD: The Sindh government Thursday reiterated its stance that the Senate elections should be held through the secret ballot, as Article 226 of the Constitution advocated secrecy.

Chief Justice of Pakistan (CJP) Justice Gulzar Ahmed, however, observed that both the Pakistan People’s Party and Pakistan Muslim League (PML-N) had agreed in the Charter of Democracy (CoD) that the Senate elections should be held through the open ballot but it was not implemented in letter and spirit.

A five-member larger bench of the apex court — headed by Chief Justice of Pakistan Gulzar Ahmed — resumed hearing of the presidential reference. Justice Mushir Alam, Justice Umar Ata Bandial, Justice Yahya Afridi and Justice Ijazul Ahsan were the other members of the bench.

Advocate generals of the four provinces and the Islamabad Capital Territory (ICT) completed their arguments. Advocate General Sindh Salman Talibuddin reiterated that the Senate elections were held under Article 226 of the Constitution.

He further submitted that after the cabinet’s approval, the federal government wanted an amendment but it shifted the whole burden to the court in this regard. He said the jurisdiction of the Supreme Court was advisory to which the chief justice how the apex court’s role in this regard was advisory.

Talibuddin replied that the court could only answer the questions raised before it in the presidential reference but now a lot of things were happening and a lot was being heard. The chief justice, however, said the court was not interested in these things and asked if there was evidence of money transaction during voting then how the Election Commission would investigate.

The AG Sindh replied that it was the Election Act 2017, which would determine punishment for illegal practice like bribery. “Even if you look at the vote sellers vote, how can it prove that money was taken,” Talibuddin contended adding that just by looking at the vote, corruption could not be proved.

"The court should steer clear of questions of a political nature," he said, adding that the Election Commission of Pakistan should instead be allowed to fulfil its responsibilities. "The Supreme Court can only answer questions that are raised," said the Attorney General of Sindh, adding that it has an "advisory" role.

According to Geo News, the chief justice said the Constitution was a political document and when the court interpreted it, then it was carrying out a political task. Talibuddin said there was no proof that introducing open balloting would eliminate horse-trading.

"We cannot say whether open balloting will eliminate horse-trading but it is disappointing that the PPP and the PML-N have gone back on their earlier agreement," responded the chief justice.

Justice Ijaz Ahsan, however, observed that removing vote secrecy did not mean corruption had taken place adding that the Election Commission should have the power to investigate. “The Election Commission should have the right to check the process of voting and ensure that money had not been exchanged,” Justice Ijaz remarked adding that the door could not be closed completely by keeping the vote secret.

According to APP, Justice Ijaz remarked that keeping the vote secret was a matter of encouraging crime.

Talibuddin contended that it was the constitutional mandate of the Election Commission to ensure fair elections in accordance with the Constitution as enshrined in its Article 218(3). “Let the Election Commission fulfill its constitutional obligation and guard against the corrupt practices,” AG Sindh said, adding that it was not the court’s job but the Election Commission.

He further submitted that there should be no corrupt practices, bribery and illegal practices as the Election Act 2017 covered all. The chief justice asked Salman Talibuddin to deliberate on time of casting of vote and whether the vote could be investigated if not cast in accordance with the law.

Talibuddin replied that once the ballot paper was in the hands of the voter, no one could see it and no one was allowed to see who the voter had voted for. He submitted that the vote had its own sanctity, which could not be violated adding that secret identity of the vote had complete protection.

“It is said votes are sold but it is all hearsay, as still it cannot be identified,” the AG Sindh contended. He further said there was no truth about horse-trading and no one had so far provided any evidence in this regard.

“Horse trading is confined to media reports and videos and nothing more,” he added Justice Ijazul Ahsen interrupted and said vote secrecy was only up to the ballot box. “If the law is violated by any legislator, it can be challenged in the election tribunal or the Election Commission can look into it. In case of complaint, the Election Commission can identify the vote,” he said.

Talibuddin, however, objected saying the voter could be seen at the time of casting his/her vote but no one could see whom he/she voted for. Meanwhile, Advocate General Punjab Ahmed Awais submitted that he agreed to Talibuddin but wanted it to the point proportional representation.

He contended that the spirit of proportional representation must reflect in the Senate elections. He said the strength of any party in the provincial legislature must be ensured in the Senate elections as enshrined in Article 59(2) of the Constitution.

"If one cannot get proportional representation in the Senate election, it means some corrupt practices have been committed," Awais submitted. He said Parliament was the supreme body and hence its dignity must be protected. He further said there were some restrictions on the members of the Assembly. Democratic process, he said, continued with the Parliament.

He contended that secrecy was also kept in the voting mechanism while the members of the Assembly were obliged to follow the discipline outlined by their respective parties. Justice Umar Ata Bandial asked the Punjab law officer if it was written anywhere in the law that vote secrecy would remain forever.

Advocate General Punjab replied that in indirect elections, members were bound to obey the party rules. Earlier, the chief justice asked if the Election Commission had prepared any such document for the recent Senate elections.

The ECP lawyer replied that they had prepared a guideline for the upcoming Senate elections. The Chief Justice asked her to bring the documents. The court sought voter's guidance from the Election Commission with the direction that five copies of the directive should be made available to the five judges. Later, the court adjourned the hearing until today (Friday).