ISLAMABAD: On Wednesday, the Chief Justice of Pakistan (CJP) Gulzar Ahmed remarked that the issue of ballot secrecy had been left to the parliament and would be decided by the sovereign legislature.
The comments came during the hearing on the controversial presidential reference regarding open ballot voting in the Senate elections. The case of presidential reference is being adjudicated by the apex court’s five-member bench. “We are not the parliament and neither can we reduce its authority,” said the CJP.
He remarked that party leadership has no role in democracy; decisions are taken by the political party, not the leadership. “Nobody can enforce their decisions. Party decisions should be taken in a democratic manner. The Constitution mentions parties, not their leaders.”
Adding to the issue, the chief justice asked what mechanism is there to ascertain how the party decided to vote and for whom, “do parties have minutes of their meetings?” he asked.
The CJP summarized the legal issues before the court as three-fold: firstly, Is Article 226 applicable to the Senate elections or not? Secondly, can proportional representation be done through a single transferable vote? And lastly, are elections prescribed in the constitution required to be secret.
The court hearing saw the continuation of PPP lawyer Senator Mian Raza Rabbani’s argument as he pointed out that examples presented in the apex court were related to the lower house of the parliament. In contrast, the presidential reference was concerned with elections in the upper house.
“A vote is the secret of the voter which he can share with another voter but not the state. The Constitution mandates that no pressure of any kind be brought on the voter. If the vote is made identifiable, then it will no longer be [only] the voter’s secret.” He further clarified that the Senate polls could not be conducted under a temporary law (presidential ordinance) as they are part of the constitutional set up of the state. “According to the Constitution, Senate elections cannot be held under a temporary law.”
“Keeping it secret is the voter’s right and making the ballot identifiable amounts to reducing their independence,” he argued, citing that the reason for the secrecy was to guard the independence of the vote. “The question is whether the ballot is secret or not. The ballot is not secret, but when it comes into the hands of the voters, its secrecy starts […] Even state officials cannot see who the person has voted for.”
Talking about the court’s concern on proportional representation, Rabbani contested that the Senate is not a body aimed at giving political parties proportional representation. Rather the provinces are the Senate’s concern.
Justice Ijazul Ahsan remarked that “[the word] free has not been used for Senate polls, so it is not necessary to have secret ballots [in its election,” he remarked, adding that if the concept of proportional representation was kept in mind, then there was no need to keep the votes secret.
Farooq H. Naek, representing PPP-Parliamentarians, argued that if parliament passed a law [i.e. open ballot] that violated the Constitution, the apex court has to declare it ultra vires to the constitution, hence null and void. “According to Article 226 of the Constitution, no voter can be forced under any condition to open their ballot. The court is hearing the matter in an advisory capacity [and] it has to answer in legal terms, not political.”
Naek emphasised that the presidential reference asked a legal opinion from the court, not a political action.
Naek said that MPAs cast their votes as individual members of the provincial legislature, adding that if votes are cast individually, then balloting could be secret. “Parties provide lists for specific seats. It is not necessary to follow the party line in Senate elections,” he further said. My arguments will be based on the law, not the ‘deep state’, he added.
“If secret voting ended, it would be a setback for democracy,” he concluded.