On February 6, the president of Pakistan promulgated the Elections Ordinance, 2021. This amendment aims is to make provincial legislators vote by a show of hands in the Senate elections, rather than through secret ballot —as mandated by Article 226 of the Constitution. Whether such a change is permissible is a legal question pending before the Supreme Court. A pertinent question in this regard is whether the people desire such a change in the election process for the Senate?

John Stuart Mill, in Considerations on Representative Government, famously stated that a vote is a trust in the consideration of public good, rather than a right to do as one wishes. Mill contended that secrecy should be the exception, not the rule, because without publicity, it can be hard to achieve accountability. Secret ballots were introduced in general elections to avoid coercion, intimidation and bribery. The secrecy of the ballot would prevent those in power from coercing or intimidating the voters to vote for a particular person or towards a particular end (in case of a referendum). Proponents of secret ballots also argue that people are entitled to keep their vote secret because the protection for privacy of individuals is central and essential to democratic citizenship.

However, both these lines of reasoning fail when they are applied to voting by legislators. When voting by legislators is concerned, many commentators concede that there are special duties of accountability and publicity that apply to legislators but not to the ordinary voter. It may be said without doubt that the legislator has in fact been elected on a trust by the people to vote in their interests as the beneficiaries of such a trust. Legislators as trustees thus have a duty to account to the beneficiaries (the voters) on how they vote on laws as well as elections of Senators.

The United States faced similar problems prior to the enactment of the Seventeenth Amendment. In the aftermath of explosive economic growth as a result of the Industrial Revolution, wealth became concentrated in a few hands. The wealthy were able to influence senatorial elections through bribery and corruption of state legislators. In 1913, the Constitution of the United States was amended to revert back the agency of election to the people through direct election of senators. Albeit, the 17^th Amendment recreated a lot of problems that it was meant to solve. Direct elections meant that senators required funds for campaigning, which came from the same hands that had corrupted the Senate membership in the first place. The experience of the United States is illustrative of the complications in designing a constitution; democratic slogans may be hollow and absent in any political foresight.

But before we test the notion of secrecy and the boundaries of Articles 226, three essential questions must be answered: what is the Senate’s function? How do we determine whether secrecy is apt in election of senators? And finally, whether the Constitution preserves the right to privacy of a member of provincial assembly in his election of members to the Senate?

The purpose of the Senate, as illustrated by Abdul Wali Khan in the National Assembly debates on the Constitution in 1973, was stated to be as follows “the purpose of that Senate is that they should have representatives from the federating units sitting there as having equal representation, so that they could safeguard the interests of their own Provincial units”. The Senate in Abdul Wali Khan’s words is a federalist body created to protect the rights of the provinces. Thus, unlike the National Assembly, membership of which is based on population of the particular constituency, all provinces have equal representation in the Senate. The second main function of the Senate is the preservation of Westminster style bicameralism. The idea is to have an upper-house of parliament elected by a distinct constituency, in order to prevent the formation of factions by private interest groups and encourage public deliberation over policy issues.

Article 226 has a mysterious history, it was enacted nearly verbatim without any debate in the Constituent Assembly.

Article 226 has a mysterious history; it was enacted nearly verbatim without any debate in the Constituent Assembly. It was an insertion adopted from its predecessor: Article 172 of the 1962 Constitution that also mandated secrecy in referendums in addition to elections. In 2010, the PPP-led coalition thought it prudent to amend Article 226 of the Constitution to add the words “other than those of the Chief Minister and the Prime Minister”, and thus excluded secrecy when it came to election of these executive heads.

This amendment was purportedly enacted to do-away with the omission of these very words by Gen Zia-ul Haq’s 1985 Constitution Order (Third Amendment). This was done in order to make legislators accountable for their choice of the heads of the Executive. Thus, in its current form Article 226 raises substantial questions regarding the disposition of the purported privacy of legislators. This is so especially when it comes to both elections of the heads of the executive, as also its retention in all other kinds of elections. If the makers of the Constitution aimed to retain secrecy when it came to Senatorial elections would they have stated its purpose as the “protection of state interests”? If a member of provincial assembly is publicly accountable when it comes to his votes on laws and election of the chief ministers, why is secrecy mandated when it comes to election of senators?

The answer to these questions lies in how senators are perceived. Commentators on the Seventeenth Amendment to the US Constitution recognised that prior to its passage, senators were thought of as ambassadors of states rather than the direct appointees of citizens. Abdul Wali Khan presumably also thought the same of the Senate in Pakistan and hoped that it would protect the interests of its appointers i.e., the provincial assemblies. Article 59 (2) of the Constitution states “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”. Such a voting system generally ensures that none of the votes are wasted and legislators can cast multiple votes by ranking their preferences of candidates.

Once secrecy is added to the equation it cannot be determined how any particular member of a provincial assembly actually voted. Successful senators in such elections may or may not be the ones who would best protect the provinces’ interests. They only need to be highly-ranked by a majority of provincial legislators, who in the prevalence of secrecy are easily prone to bribery and corruption. This is especially noteworthy in Pakistan, where many political parties like the ANP, the MQM, the BNP and the NP have been formed solely to represent particular regional interests, but often fail to appoint a proportionate number of senators.

Since the process of appointment of senators is termed an “election” under the Constitution, there may be no carve-out from the explicit wordings of Article 226. It is perhaps because there wasn’t any extensive deliberation behind its enactment that there may be a flaw of constitutional design in its making. Effective representation of provincial interests and duties of provincial legislators to their subjects require that election of members to the Senate be public. Otherwise, the Senate will remain an anti-democratic body prone to private interests, devoid of the advantages of bicameralism, constituted by members of the elite and elected to legislate for the benefit of its secret appointers.

The writer is a graduate of the Columbia University and a High Court Advocate. He can be reached on Twitter at @shahmeer3192