Constitution is silent on Secret Balloting: CJP Gulzar Ahmed

ISLAMABAD: Article 63-A of the constitution does not apply to Senate elections but Article 59 of the Constitution refer to the Senate elections which is silent on secret balloting, Chief Justice of Pakistan Justice Gulzar Ahmed observed on Thursday hearing a Presidential reference seeking an opinion on open balloting for the upcoming Senate elections.

Chief Justice Gulzar Ahmed heading a five judge bench of the august comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Yahya Afridi, asked ECP to assist the court.

Chief Justice asked the Secretary Election Commission whether any guidelines were prepared for the 2021 elections.

The Secretary Election Commission replied that the guidelines for the recent Senate elections were yet to be issued.

Advocate General Punjab Ahmed Awais submitted that the guidelines previously issued by the Election Commission of Pakistan (ECP) mentioned proportional representation and secret ballot.

Under Article 226, every election, except for the Prime Minister and Chief Ministers, would be through secret ballot, he added.

Members of parliament are elected on the tickets of political parties on the basis of their political affiliation, said AG Punjab while pleading that the members of parliament are bound to follow party discipline in indirect elections.

There were instances of illegal grabbing of the mandate in the past, he said and added that former President Asif Ali Zardari recently announce to win about 10 seats which is merely a political statement but against the mandate.

He said that the job of the Election Commission is to stop corruption before it occurs.

The AG Punjab said that it was not essential to keep everything secret for transparency.

The attorney general said there was no penalty for voting against the party discipline as punishment could only be for buying and selling votes.

Advocate General Sindh Salman Talibuddin sai said that proportional representation in the senate was related with provinces and not with the political parties.

He termed the question raised in the presidential reference as irrelevant. Everyone had heard of horse trading but no one had any evidence in this regard, he added.

He said that horse trading was done only in newspapers and videos and the court should stay away from political questions.

The Chief Justice told him (AG Sindh) that the constitution itself was a political document.

The court was doing political job while interpreting the constitution, he added.

He asked was it feasible to scrutinize the vote after election result.

The Advocate General Sindh said that votes ware viewed during counting but the voter remained unidentified.

It was not mandated in the constitution to disclose identity of the voter, he added.

He asked whether the open ballot would end horse trading?

He said that the election commission was entrusted for holding transparent elections.

The Chief Justice said that he could not say whether the open ballot would end horse trading or not. If there was any evidence of money used for elections , the Election Commission would take action, he added.

Justice Ijaz-ul-Ahsan remarked that the Election Commission would be able to investigate if votes against the party line came to light. If there is no money transaction, the matter would close, he added.

He said that corruption in the electoral process could not be exempted.

Justice Bandial said that the ballot papers were the best evidence for the Election Commission.

Advocate General Sindh asked whether the disclosure of voter's identity was evidence of corruption.

He said that the court is being asked to protect party discipline.

Bribery and vote buying were criminal offenses under the Election Act, he added.

Addressing the AG Sindh, the Chief Justice said that he was saying that there was no horse trading but resolutions had been passed in the parliament that horse trading should end.

The Attorney General had also submitted resolutions to the court, he added.

He said that PML-N and PPP had recognized horse trading in the Charter of Democracy (CoD).

Justice Bandial said that if there was any evidence of corruption, then there should be an authority to review the votes.

He asked how could a crime be proved without reviewing the vote?

AG Sindh Salman Talib-ud-Din said that just viewing the vote would not prove a crime.

The Chief Justice said that it was not just a matter of payment, it could be paid in any form.

Justice Ijaz said that keeping the vote secret was a matter of encouraging crime.

The Chief Justice asked whether the elections held on reserved seats were held under the Constitution?

He asked why secret ballot did not apply to reserved seats.

The Advocate General Sindh replied that the election was held under the constitution, but the procedure for reserved seats was different. There was no secret ballot for reserved seats but political parties made nominations, he added.

He said that Article 226 applied where voting takes place, but this article could not be interpreted in such a way as to give the impression of amending the constitution.

Justice Ijaz said that there was no voting on reserved seats but it was still called election.

The Advocate General Balochistan, while adopting the arguments of the Attorney General, said that corruption was also prohibited in the Holy Quran.

The world had taken steps to prevent corruption in the electoral process, he added.

The Advocate General Islamabad Niazullah Niazi also adopted the arguments of the Attorney General and said that a video of corruption in the Senate election had revealed.

He said that the process of keeping the vote secret was limited to the polling station.

He alleged that the Election Commission had not been able to hold transparent elections till date.

CJP later adjourned the hearing while seeking opinion of the ECP on the matter before the court.