Secret ballot for Senate polls: Will ECP succeed in ensuring transparency?

Today, the Supreme Court (SC) has announced its judgment on the presidential reference regarding Senate polls, directing that elections for the upper house of parliament will be conducted through secret ballot, according to Article 226 of the Constitution.

The Supreme Court had reserved its decision on the matter on February 25 after the conclusion of proceedings on presidential reference seeking legal opinion to hold Senate elections on the open ballot without a constitutional amendment. 

A five-member larger bench headed by Chief Justice of Pakistan Gulzar Ahmed and comprising Justice Umar Ata Bandial, Justice Mushir Alam, Justice Ijaz-ul-Ahsan and Justice Yahya Afridi announced the verdict in open court.

The apex court ruled that the Election Commission is empowered to take all the steps to ensure transparency in the polls. The court said it was the responsibility of the Election Commission of Pakistan (ECP) to conduct free and fair elections. The commission can use technology to ensure the transparency of the polls, the short order stated.

Secrecy of ballot not absolute

Concerning the confidentiality of the ballot, the Court referred to a past precedent in which it had held that the confidentiality of the ballot is not supreme or absolute and that the secrecy of the ballot has not to be implemented in the ideal or absolute sense, however, to be tempered by practical considerations necessitated by the processes of the election.

Justice Afridi disagreed

The apex court announced a 4:1 decision with Justice Yahya Afridi dissenting with the majority opinion. Justice Afridi differed with the majority opinion while observing that the opinion sought by the President, the Islamic Republic of Pakistan in the instant Reference, is not a question of law within the contemplation of Article 186 of the Constitution of the country, 1973. Thus, he abstained from giving an opinion on the reference.

The presidential reference

The reference, filed by the federal government in the SC, had said that the president had sought the apex court’s judgment on whether the condition of holding a secret ballot referred to in Article 226 of the Constitution is applicable only for polls held under the Constitution — such as the election to the office of president, speakers and deputy speakers of the Parliament and provincial assemblies — and “not to other polls.

The reference stated the election for the members of Senate held under the Elections Act 2017 enacted to pursuant to Article 222 read with Entry 41 (1) of the Fourth Schedule to the Constitution which may be held by way of secret or open ballot as offered for in the Act. The nature of the elections and the way it is conducted was not been clearly mentioned in the Constitution, according to the reference.

Victory for Pakistan

After the court verdict, while talking to media outside the Supreme Court PTI Senator Faisal Javed termed the opinion a wonderful decision and a ‘triumph for Pakistan’.

Faisal Javed said the attorney general’s team worked hard and great arguments were completed. Such a detailed discussion on the Senate election has not happened earlier than.

The PTI leader further said the court had directed the ECP to work on matters including proportional representation and take steps against corruption in polls. He also said the government’s decision to file a presidential reference was a crucial and good decision, saying it was a momentous objective in the PTI’s struggle.

Meanwhile, Federal Minister Shibli Faraz urged the ECP to take steps to make sure transparency in light of the instructions given by the court. The federal minister described the SC’s opinion as ‘historic’ under which Senate polls will be held as per Article 226 of the Constitution.

PML-N a victim of horse-trading

Soon after the court’s judgment, PML-N Spokesperson Marriyum Aurangzeb said her party was of the opinion that Senate elections should be conducted according to constitutional provisions and any alteration in this process should be brought through Parliament.

Marriyum Aurangzeb said that the ECP’s role regarding intelligibility has yet to be determined and the detailed verdict will shed more light on the issue.

The spokesperson said that the PML-N has been the victim of horse-trading and vote-theft in the past and the party wanted that the election should be held transparently.

It to be noted here during the Senate polls, the issue of buying and selling of votes in the country comes to the fore. Political parties openly try to win votes by offering different incentives to other party members.

In the past, various political parties won seats despite not having a numerical majority in the provincial assemblies and last year the opposition party failed despite having a numerical majority in the no-confidence motion against Senate Chairman Sadiq Sanjrani.

Electoral reforms essential

Sadly, we have been earshot allegations of manipulation in the electoral process since the polls that were held in 1970.  Pakistan faced various hindrances to the process of strengthening democracy due to corrupt practices.

This includes, among others, a regular intrusion of non-democratic forces into the civilian domain, pitiable performance of the authorities, causing the removal from office of a democratic system and brittle party structures in the country.

It is essential for all politicians and institutions to realize that electoral reforms along with policies may focus on greater civil-military support.