The Sindh government has opposed the federal government’s proposal before the Supreme Court of Pakistan seeking its opinion whether the condition of secret ballot under Article 226 of the Constitution applies to the Senate elections or not.
“In the circumstances, the moral suitability of the question for an opinion under the advisory jurisdiction of Article 186 of the Constitution is questionable,” the Sindh government contended in a synopsis, adding that the apex court should decline to offer its opinion for reasons of judicial propriety. The synopsis was moved through Advocate General Salman Talibuddin.
In its reply, the Sindh government contended that it could safely be discerned from the discussion on different provisions of the Constitution that the elections to the Senate are elections “under the Constitution” as expressed by a plain and ordinary reading of Article 226 of the Constitution.
The insertion of the word “held” in Article 226 would lead to an absurd and illogical conclusion, which is beyond the intention of the legislature and in conflict with the democratic values of free and fair elections encoded in the Constitution, argued the Sindh government.
Voting by secret ballot has been widely and universally recognised as a fundamental principle of free and fair elections, the Sindh government highlighted and went on to say that the merits and de-merits of the secret ballots have also been discussed in several cases in Pakistan.
The Federal Shariat Court (FSC) repelled the contention that secret ballots were in any way un-Islamic, it reminded, adding that the apex court also held that the ‘secrecy of the ballot ensured sanctity of vote’ and safeguards against intimidation.
Chairman Senate Sadiq Sanjrani has backed holding Senate elections via open ballot in his response to a reference pertaining to the matter filed by the government in the Supreme Court.
In his five-page response to the SC filed through his lawyer Tariq Aziz, Sanjrani said allegations of floor-crossing (changing party loyalties) and rigging were leveled following the 2015 Senate elections after which there was a debate over the polling procedure.
Khyber Pakhtunkhwa, Punjab, and Balochistan governments have also backed the federal government’s opinion of holding open-ballot polls, while Sindh has rejected the idea.
A five-judge larger bench of the apex court, headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz ul Ahsan and Justice Yahya Afridi, hearing the reference.
Read more: Government mulling over early Senate elections, seeks SC’s opinion
The apex court had issued notices to Advocate Generals, the Election Commission of Pakistan, Chairman Senate, Speaker National Assembly and the Speakers of provincial assemblies over the issue.
PTI to emerge as the winning party?
Ahmed Bilal Mehboob, President of the Pakistan Institute of Legislative Development and Transparency, opines that “if the Senate election takes place in March 2021 as scheduled, the PTI is likely to emerge as the largest party in the house, displacing the PML-N from that position”.
It is, however, important to note that the Pakistan Democratic Movement (PDM) has announced to resign from the assemblies. PPP, led by Bilawal Bhutto Zardari, is one of the parties rallying against the government. Syed Murad Shah, Chief Minister Sindh, may advise the dissolution of the assembly shortly ahead of the Senate election in March 2021 which may keep an entire province out of the election.
Read more: Will MQM-P support PTI in Senate Elections?
Mehboob writes that “in case this happens, it will be the first time that a province skips the Senate election cycle”. “Since there is no clear and explicit provision in the Constitution and the Elections Act regarding such a situation, the matter may end up in a court of law for resolution and interpretation of the Constitution,” he continued. “This may become necessary also because fresh election of the chair and deputy chair of the Senate has to take place immediately after the March 2021 election and the absence of half the representation of a province may significantly impact the outcome of these elections,” he concluded.