Why or why not an ‘open ballot’: Insights by experts Senate Elections 2021

A number of experts, from legal and constitutional lawyers, politicians and civil society gave us their views on what they thought about the government's initiative on the open ballot for senate elections.

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Barrister Ahmed Pansota, Constitutional & Legal Expert

The government’s move to conduct the upcoming senate elections through an open ballot is a cause for concern for a lot. For the constitutional position on the subject, we need to first read out the relevant provisions. As per article 59 (2) of the Constitution, the election of the Senate has to take place through a system of proportional representation. It further states that members of the Senate should hold office for a term of 6 years.

Article 218 (1) of the Constitution states that the Election Commission of Pakistan (ECP) is empowered to conduct elections of both houses: Senate and the National Assembly. Article 218 (3) embodies a duty on the ECP to conduct the elections in the best possible manner; in a fair, just and honest exercise – in accordance with the law.

To understand what is exactly under debate at the moment, let’s look at article 226, which has actually ignited this debate. It says that the Constitution stipulates that all elections which are conducted under the constitution except for the positions of Prime Minister and Chief Minister shall be by a secret ballot and therefore the presumption is that election of the Senate is also done through a secret ballot.

The Attorney General of Pakistan has recently given his opinion and has advised the government that a comparison has to be drawn with the local government elections based on a specific provision in the Elections Act 2017 and section 122 (6) of that act, which clearly says that the elections have to be conducted through a secret ballot. Now, the incumbent government is deliberating over changing that in the favor of an open ballot.

Read more: Et tu, Brute? Senate: Where it came from?

However, there are observations from various quarters that it requires a Constitutional amendment or the amendment otherwise. Hence, the Attorney General of Pakistan rendered his opinion in the light of a Supreme Court judgement, whereby the MQM case was discussed and it was said that since there is a legislation on the subject, therefore, this will not be an election under the Constitution.

In the local government, the election can take place either through a secret ballot or through an open ballot, which is up to the government. Similar is the case here. So now this question has also been sent to the Supreme Court for its advisory jurisdiction under Article 186.

In my humble opinion, it will be up to the Supreme Court to decide whether it is under the Constitution or not. Its opinion, in my view, shall be binding as it tantamounts to interpretation of Constitution.

Since there is a legislation in form of Elections Act 2017. Section 126 clearly states that it can be done through a secret ballot – and that law can always be amended through an ordinance or by Parliament – therefore the government can do it and it will not be an election under the constitution per se. I would rely on the same Supreme Court judgement discussed earlier which had overturned a Sindh High Court judgment “760/765 (2016) “Government of Sindh vs MQM” and it went into an appeal. It was very categorically held that since there is a local legislation on the subject, therefore, it will not be an election under the Constitution. This applies in the present scenario as well, therefore, the government can conduct Senate elections through open ballot either by amending the law with an ordinance or through Parliament.

Read more: Pakistani Senate Elections: The Good, the Bad and the Ugly?

Government’s recent decision of amending the Constitution, in the presence of Supreme Court Proceedings, comes as a surprise to me. What if Supreme Court holds that the election of senate is not under constitution? One thing is for sure the coming month seem to be quite an interesting one as government undertakes a constitutional battle.

Barrister Abdullah Babar Awan, Advocate and columnist

Historically speaking and unfortunately, Senate Elections in Pakistan have been marred by allegations of widespread horse-trading, vote-buying and corrupt practices, thus casting serious doubts not only upon The House of Federation but the electoral process itself. In such circumstances, it is the duty of all parliamentarians to rise above partisan politics and obstructionist attitudes to address the problems that permeate Senate’s electoral college. Article 23 of the Charter of Democracy, signed between the PPP and PML-N in 2006, also voices support for holding Senate elections through an open ballot.

Except for PTI Chairman Imran Khan expelling more than 20 KP assembly members, during Senate elections 2018, lawmakers have never been held accountable for selling their vote. An open and identifiable ballot will thus ensure both transparency and accountability. While comprehensive electoral reforms are desperately needed, with the Senate elections merely weeks away and no time to lose, the government has rightly approached the Supreme Court under Article 186.

Our constitution does not apply the principle of secrecy to Senate Elections like it does, for example, in case of election of the office of the President, Speaker National Assembly, Chairman Senate etc. A switch to an open ballot will therefore be in accordance to the overriding objectives of the constitution. Hence legally and constitutionally, there is no hurdle in holding the election through an open ballot.

Kanwar Dilshad, Former Federal Secretary (BPS-22), Election Commission of Pakistan.

I t is interesting that while the government wishes to adopt an artificially strained and restrictive inter pretation of the words under the constitution in Article 226 so as to remove the requirement for secret balloting in respect of senate elections, it is simultaneously prepared to liberally read words into Article 51 ..6 and 106..3 in order to introduce a requirement for secret balloting even it’s mentioned in electons act 2017 in section 222.

Read more: Black and white inquiry part of the new bureaucratic reforms

Muhammad Amin Shaheedi, Chairman Ummat-e-Wahida Pakistan

By keeping in view, the rise and fall of politicians and other challenges in the history of Pakistan, unfair use of law and constitution can be called the biggest problem of Pakistan. It has been the exercise of different governments, establishments and political and religious parties that they take undue advantage of limitations and complications of law and constitution. The main reason behind this deficiency is a “corrupt system.”

The correct implementation of the law has become essential in order to stop the entry of politicians from trapdoors. Getting elected through power or particular source in Senate election or any other must be put to an end. I support the announcement of the government of Pakistan Tehreek-e-Insaf for an open and transparent vote on Senate election. The opposition parties should also endorse the government’s offer as this would be an appropriate time to hold free and fair election. The previous Senate election had a secret poll in which the results were astonishing i.e. the government failed to get reasonable majority votes as expected. The offer of open and transparent ballot by PTI government is appreciable, and this practice should be started.

Maj Gen Ijaz Hussain Awan (Rtd), Former High Commissioner and a prominent Defence Analyst

The bane of our abortive democratic governments and political leadership crises resides in non-transparent elections, perceived or maligned to be managed. Conduct of elections – be it nationwide general elections or in-house elections for National Assembly and Senate office bearers – all lack credibility and acceptability. Unfortunately, rigging, pre-poll engineering and horse-trading are synonymous to electoral exercises at all levels.

Needless to say, democracy is anchored and flourishes when the independent choice of voters comes into play. In Pakistan, since 1971, it has remained a pipe dream. Repeated governance crises and the resulting political instability has stemmed from the lack of transparency in elections and resultant unacceptability of outcome.

Read more: The Electoral system of Uzbekistan is better than Pakistan

In the aftermath of an election, agitations and accusations of corrupt practices created space for the military’s intervention in politics. Ironically, successive political leaders have overlooked the dire need for political reforms, creating space for the manipulation of electoral results at all levels. Military dictators have also remained surrounded by sycophants and opportunist politicians who made sure reforms during military rule are made impossible. Hence, political forums are infested with intrigues and manipulation.

All said and done, presently, we have a non-traditional Prime Minister at the helm, who is surely not in power for short-lived gains, and instead wishes to reform institutions and revamp the system. Therefore, he requires facilitation, at all levels, to achieve the noble objectives.

As a first step, Senate elections should be made transparent to lend credibility to the choices that elected representatives make; setting a tradition of transparent and credible elections at a forum where all provinces are proportionately represented. Godspeed.

Omar Jamil, CEO, Latitude Corporate Relationship Solutions

I think it’s important to note what is constitutionally permissible. The Senate election procedure is clearly prescribed in the constitution. To change the election procedure there would have to be a constitutional amendment. A constitutional amendment requires more than a simple majority in Parliament. An amendment must be approved by 2/3 of the National Assembly and the Senate.

Read more: Incompetence & Ineptitude: Failure of the Result Management System – Kanwar Muhammad Dilshad

The present Government doesn’t have the numbers in Parliament to affect a constitutional amendment. That is why they have approached the supreme court. The court has not adjudicated yet but one of the comments reported from its proceedings was asking the government why it was bringing a political question to a judicial forum.

Moreover, in principle at least, a secret ballot allows for those voting to ‘vote their conscience’ without fear of potential reprisals.

Shandana Gulzar Khan, PTI MNA

The Federal Government has sought the Supreme Court’s opinion under Article 186 of the Constitution on whether the Senate elections are conducted “under the Constitution”, per Article 226 or under the Election Act 2017 – both of which mandate secret ballots. The Constitution does not provide a detailed mechanism – the Senate elections are conducted through the procedure prescribed under the Elections Act, 2017. Therefore, the government could in theory amend the Elections Act 2017 through a Presidential Ordinance for “open ballot” and pave the way for open and transparent processes.

Why all the furor then?

The issue strikes at the heart of Pakistan’s federation and democracy, the Senate, where the shadow of allegations of horse-trading mar each senate election cycle, wherein the Sadiq and Ameen are available, bought and sold in the name of the federation or democracy or some equally catchy term as “expediency” or “need of the day”. Depending upon who is the buyer and who is the seller – honor, honesty and merit rarely make the cut.

Surprisingly, the PM’s move is opposed by people who spoke of the horror and frustration of horse-trading merely 3 years ago.

Read more: Challenges to bringing transparency in the Senate elections

If we focus solely on the legal, it begs the question ‘why anyone hasn’t dealt with the interpretive ambiguity by the framers of the constitution?’ The terminology of article 218(3) of the Constitution specifically direct the ECP to ensure “corrupt practices are guarded against”.

Finally, where does this leave the prisoners of conscience who would like to vote against party lines or the independents? What are we strengthening and weakening? It’s these questions that need to inform each debate thundering on this issue, instead of headline-grabbing rhetoric.

Mr. Farrukh Habib, PTI MNA

In the Senate Elections, when the MNAs and MPAs, which form the Electoral College, are accused of horse-trading – as honest representatives of the people, it’s very important that they make a serious effort to shun this practice, once and for all. There is a dire need of legislation or an amendment in the Constitution to fix this lingering problem. As the Supreme Court has been consulted for its advisory opinion on the issue, it is important that whatever the honorable court decides in order to make the Senate elections more transparent – is accepted by all political parties.

Senate Elections should be held through an open and traceable ballot by introducing relevant laws so that parliamentarians are held accountable whenever they are found violating the party manifesto. The entire procedure will become cleaner and more transparent.

Read more: What made Senate Elections ‘controversial’?

It’s important to note that the opposition parties (PML-N and PPP) had held in the Charter of Democracy that to prevent corruption “all votes for the Senate and indirect seats will be by open identifiable ballot” and that “those violating the party discipline in the poll shall stand disqualified”. Based on that, I believe, there is no reason not to support the government’s move. The ones who do not support conducting the Senate election through an open ballot must be either involved in horse-trading or benefitting from it.

All the political parties must support Senate elections through an open ballot in order to make the process more clean, transparent and fair.

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