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THE Senate of Pakistan has been in existence since the 1973 Constitution was adopted by the country’s Fifth Legislature. During this period, the election of senators was always conducted by secret ballot. Although there have been sporadic voices in the past calling for an open ballot system, it has never been suggested that the Constitution does not require that senatorial elections be held by secret ballot. It was understood that a change in the secret ballot system for the Senate would require a constitutional amendment.

Article 226 of the Constitution reads as follows: All elections provided for by the Constitution, other than those of the Prime Minister and the Prime Minister, are conducted by secret ballot. Until recently, there was broad consensus that the term All Constitutional Elections also included Senate elections.

Only about two months ago, the President sought the opinion of the Supreme Court on Prime Minister Imran Khan’s proposal to hold Senate elections by public ballot / show of hands. In the referral, invoking the advisory jurisdiction of the Supreme Court under Article 186 of the Constitution, the President sought the opinion of the Supreme Court on the amendment of Article 122 (6) of the Election Law of 2017, without amending the Constitution, to organize senatorial elections by open ballot. As the Supreme Court hears various arguments on the referral, two important developments have occurred.

Open and identifiable ballots are a cause for concern.

The president promulgated an ordinance on February 6 allowing for Senate elections to be held by open and identifiable ballot by amending the Election Law of 2017, in case the Supreme Court agrees with the government’s argument that the Senate election no. This is not an election under the Constitution. It is an extraordinary piece of legislation because it is subject to the opinion of the Supreme Court. Furthermore, instead of building consensus through dialogue and debate within and outside parliament, it is also extraordinary to use an ordinance to legislate on such a controversial subject. Another development following the benchmark is the announcement of the Senate election calendar by the Pakistan Election Commission (ECP) which set March 3 as polling day.

Following receipt and careful review of candidate nomination papers, the ECP is expected to announce the final list of candidates by February 22. This is when the PCE will start printing the ballots. If the Supreme Court does not give its opinion on the referral by that date, it will become difficult for the CEP to manage the printing and distribution of the ballots. Even more important are the implications of section 239 of the 2017 Elections Act, which requires 15 days to be allowed for public suggestions on the new rules. Since the PCE will be required to define the rules for open and identifiable ballots in the event that the opinion of the courts is in favor of such a decision, it seems almost impossible to enforce this section as less than 15 days are available. before polling day.

In addition to these technical difficulties, there are serious concerns about the desirability of open and identifiable ballots. Removing the secret ballot system for senatorial elections will have a serious impact on the freedom of choice the system has hitherto afforded lawmakers. Pakistan has experimented with a number of options regarding the freedom of choice of legislators.

Initially, the 1973 Constitution did not impose any major restrictions on such a choice by lawmakers. During Prime Minister Nawaz Sharifs’ second term, a number of restrictions were placed on lawmakers to such an extent that almost all votes by them had to follow party guidelines. Following the constitutional amendments introduced during General Musharrafs’ time and later as part of the 18th Amendment, it appears that Pakistan has achieved a certain constitutional balance in this regard.

There are four separate laws, namely the election of the prime minister and the prime minister, the vote of confidence or no confidence for the prime minister or the prime minister, the constitutional amendment and the finance bill on which the lawmakers must follow the party line, otherwise the defection clause becomes applicable to them. Although the government has said it does not want to bring senators’ votes against the party line within the scope of the defection clause, an open ballot will certainly restrict the freedom of choice of lawmakers and internal democracy. political parties will be further weakened.

While there are cases where some lawmakers vote for senators under monetary incentive, the solution is not to restrict the freedom of all lawmakers. The right solution is to be more careful when selecting party candidates for legislative assemblies.

The author is president of the Pakistan Institute for Legislative Development and Transparency.

[email protected]

Twitter: @ABMPildat

Posted in Dawn, February 21, 2021

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