Constitution silent on secret balloting in Senate polls: CJP

ISLAMABAD: While hearing a presidential reference seeking the apex court’s opinion on open balloting in Senate elections, Chief Justice of Pakistan (CJP) Gulzar Ahmed observed on Thursday Article 59 of the Constitution refers to Senate elections but it is silent on secret balloting, and that Article 63-A does not apply to the elections of the Upper House of Parliament.

Justice Ahmed, heading a five-judge bench including Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Yahya Afridi, asked the Election Commission Pakistan (ECP) to assist the court.

The CJP asked the secretary of the electoral body whether any guidelines were prepared for the 2021 elections. The ECP secretary replied guidelines for the Senate elections were yet to be issued.

Advocate General Punjab Ahmed Awais submitted that the guidelines previously issued by the ECP mentioned proportional representation and secret ballot. Under Article 226, every election, except for the Prime Minister and Chief Ministers, would be through secret ballot, he added.

Members of parliament are elected on the tickets of political parties on the basis of their political affiliation, said the AG Punjab while pleading that the members of parliament were bound to follow party discipline in indirect elections.

There were instances of illegal grabbing of the mandate in the past, he said, adding former president Asif Ali Zardari recently announced they would win about 10 seats which was merely a political statement but against the mandate.

He said the job of the ECP was to stop corruption before it occurs. The AG Punjab said it was not essential to keep everything secret for transparency.

He said there was no penalty for voting against party discipline as punishment could only be for buying and selling votes.

Advocate General Sindh Salman Talibuddin said that proportional representation in the senate was related to provinces and not with the political parties. He termed the question raised in the presidential reference as irrelevant.

Everyone had heard of horse-trading but no one had any evidence in that regard, he added.

He said horse-trading was done only in newspapers and videos and the court should stay away from political questions. The CJP told him (AG Sindh) the Constitution itself was a political document.

The court was doing political job while interpreting the Constitution, he added.

He asked was it feasible to scrutinise the vote after election result. The AG Sindh said votes were viewed during counting but the voter remained unidentified. It was not mandated in the Constitution to disclose identity of the voter, he added.

He asked whether the open ballot would end horse-trading? He said the electoral body was entrusted for holding transparent elections. Justice Gulzar said he could not say whether open ballot would end horse-trading or not.

If there was any evidence of money used for elections, the ECP would take action, he added.

Justice Ijaz-ul-Ahsan remarked the ECP would be able to investigate if votes against the party line came to light. If there was no money transaction, the matter would close, he added. He said corruption in the electoral process could not be exempted. Justice Bandial said ballot papers were the best evidence for the ECP.

The AG Sindh asked whether the disclosure of voter’s identity was evidence of corruption. He said the court was being asked to protect party discipline. Bribery and vote buying were criminal offenses under the Election Act, he added.

Addressing the AG Sindh, the CJP said he was saying there was no horse-trading but resolutions had been passed in the parliament that horse-trading should end. The AG had also submitted resolutions to the court, he added.

He said the PML-N and the PPP had recognised horse-trading in the Charter of Democracy (CoD). Justice Bandial said if there was any evidence of corruption, then there should be an authority to review the votes.

He asked how could a crime be proved without reviewing the vote? AG Sindh Salman Talib-ud-Din said just viewing the vote would not prove a crime.

The CJP said it was not just a matter of payment, it could be paid in any form.

Justice Ijaz said keeping the vote secret was a matter of encouraging crime.

The CJP asked whether the elections held on reserved seats were held under the Constitution? He asked why secret ballot did not apply to reserved seats.

The AG Sindh replied the election was held under the Constitution, but the procedure for reserved seats was different. There was no secret ballot for reserved seats but political parties made nominations, he added.

He said Article 226 applied where voting takes place, but that article could not be interpreted in such a way as to give the impression of amending the Constitution.

Justice Ijaz said there was no voting on reserved seats but it was still called election. The Advocate General Balochistan, while adopting the arguments of the AG, said corruption was also prohibited in the Holy Quran. The world had taken steps to prevent corruption in the electoral process, he added.

The Advocate General Islamabad Niazullah Niazi also adopted the arguments of the Attorney General and said a video of corruption in the Senate election had revealed. He said the process of keeping the vote secret was limited to the polling station. He alleged the ECP had not been able to hold transparent elections till date. The CJP later adjourned the hearing while seeking opinion of the ECP on the matter before the court.