Opinion on secrecy

A larger five-member bench of the Supreme Court of Pakistan has given its opinion on the matter of the secrecy of the ballot for senators: that the polls for the upper house of parliament should be held through secret ballot and in accordance with Article 226 of the constitution of Pakistan. At the same time, the court has asked the Election Commission of Pakistan to use any latest technology to ensure transparency, and also reminded the ECP of its responsibility to protect the election from corruption. We may consider this opinion as a reinforcement of the supremacy of parliament in such matters as the SC has reiterated that parliament can pass constitutional amendments. But declaring the secrecy of the ballot paper as ‘not final’ has lent some ambiguity to the decision.

The use of the latest technology may mean that the vote may be traceable and the ECP is able to identify who voted for whom. In that case, the entire purpose of the secret ballot becomes questionable. Both the government and the opposition are trying to use the opinion as vindication of their version of how to conduct the Senate polls. While the opposition says it is a vindication of its view that the Senate ballot needs to be held in secret as with other forms of balloting in the country, government senators and legal experts point out that the judgment has given a licence to the ECP to find methods to ensure transparency.

As far as the upcoming Senate elections are concerned, Punjab’s 11 senators have already been decided on the basis of party numbers. While the Sindh government has opposed open balloting and welcomed the SC opinion, Khyber Pakhtunkhwa and Balochistan have said it is now up to the ECP to ensure there is no unfair play in balloting and that it is possible to go back and see how ballots have been cast. For the moment at least, the ECP should stick to the constitution. After the upcoming elections, parliament may or may not pass an amendment to change the method of voting if it is supported by a two-thirds majority.

Ideally, the PTI government should not have opted for a presidential reference in this matter and that too at such a stage when the Senate elections were so close. The strategy of the ruling party has been to create more confusion rather than clarity. The method of polling is clear in the constitution and any attempt to affect change without proper legislation is not advisable. Legal opinion regarding the SC order is quite clearly divided and it will need further analysis of the decision to determine precisely what the court has ordered in terms of instructions to the ECP. It has however made it clear that the ECP is in charge of all balloting in the country. And this may make it simpler for the body to go about conducting the Senate poll this week.