Controversy over the Senate elections and secret ballot needs to be analyzed in the light of the Constitution and laws. Owing to expediencies public debates about many issues are left unsettled and keep coming in the way of smooth and efficient functioning of the state and its institution.
Article 59 of the Constitution provides for the creation and elections to the Senate. Electoral colleges consist of the provincial assemblies and Parliament. From the expression ‘to fill seats allocated to each province’ used in Article 59(2) it may seem that it applies to seats falling vacant upon the retirement of members under Article 59(3) and is different from filling of a casual vacancy under Article 224(5), whereunder an election to fill a casual vacancy is to be held within 30 days of the occurrence of the vacancy. Apparently, Government’s point of view seems to be based on this distinction between the two situations.
Section 122 to 132 of the Election Act, 2017 (Election Act) deal with the Senate election. Election Commission of Pakistan (ECP) has been entrusted with the holding of Senate election. Under section 107 of the Election Act, ECP issues a notification for the said election. This provision also gives an impression that ECP can issue the notification for election prior to the retirement of the sitting members under Article 59(3) and hold election thereon.
Article 59(2) refers to the filling of Senate seats becoming vacant after retirement without giving time period for elections. On the other hand, Article 224(3) provides for holding of election to fill a casual vacancy. The term of office of a senator under section 129 of the Election Act begins on the day of first meeting of the Senate after names are notified by ECP. Thus, a harmonious reading of the Constitution would show that an election to fill a causal vacancy or to fill seats on the retirement of members under Article 59(3) should be held in same way i.e. within 30 days of the of the vacancy or retirement as the case may be. On the other hand, since party position and number of vacancies on retirement are known, therefore, an election can be held prior to the actual retirement of the members and ECP can notify newly elected members after the retirements. To resolve this ambiguity, one necessarily falls back upon the past practice and conventions developed. The practice all along has been to fill seats of the retiring members election takes place after retirement of members. This ambiguity must be resolved at the first available opportunity through proper legislation to avoid any mischief.
Article 226 states that all elections other than the election of the Prime Minister and the Chief Minister under the Constitution would be held by a secret ballot. The election to the Senate is not an election under the Constitution in the sense that Article 59 only deals with the composition of the Senate. The manner and mode of Election to the Senate is provided under the Election Act. The answer lies there.
The policy argument for open ballot is that democracy is all about openness. Greeks used to hold elections in the open. So, did Romans. The constitution convention that elected rightly guided caliphs were all held under the public gaze. Thus, the rationale behind the secret ballot, which seems to have been introduced in the colonies and there is reference to it under Article 21(3) of the Universal Declaration of Human Rights,1948 is to be judged against the good that lies in openness and in the wider concept of rule of law. Electoral process in Pakistan is under dark clouds despite a clear mandate given to ECP for holding of free and fair elections under Article 222 of the Constitution. It poorly reflects upon the lack of democratic norms and defects in the system. In order to determine this issue, it needs to be seen that the interest sought to be protected through secrecy whether relates to the right to vote or the election to an office or a house and whose interest is more important. Moreover, if the purpose is to hold free and fair election then can that purpose only be achieved by a secret ballot? Since the present controversy relates to the voting of an electoral college for the Senate elections where the parties’ position is almost certain, an insistence upon secrecy by solely basing the argument on section 123(6) of the Election Act may not be very strong.
The history of elections laws shows that the main purpose of secret ballot was to protect individuals from powerful candidates. Prior to the universal adult franchise, voting rights were granted to landed, industrial, educated classes and institutions excluding women. In British India, history of representative institutions showed a gradual increase in franchise. After independence, both India and Pakistan, being members of the United Nations and also due to international developments, adopted universal adult franchise for elections to the legislative assemblies. Voting age was reduced to 18 only recently.
In Kuldip Nayyar’s case (AIR 2006 SC 3127), amendments made in the Indian election law (sections 59 & 94 of the Indian ROPA) were challenged. Under the amended law secrecy of voting to the Council of States elections was challenged before the Supreme Court on the ground that it undermined free and fair elections. The Indian Supreme Court upheld the amendments on the ground that secrecy protected a norm to allow free and fair election and security of the voters but when secrecy was abused and undermined free and fair elections then Parliament was empowered to address the mischief by amending the laws.
The matter of secrecy of ballot came before the Supreme Court in 2016 in connection with the local government elections in a petition relating to an election of office mayor/deputy mayor. It was argued that the elections to the local government were under the Constitution, reading Articles 140 A and 226 together therefore the elections to the said offices were to be held by a secret ballot. The Supreme Court agreed. On a reflection, it seems that it may not be a correct view for there is a distinction between an election to an office under the Constitution and of a legislature. Provincial Assemblies are empowered to provide the mode and manner of the elections.
The manner of Senate election is given in Article 59(2) of the Constitution viz through proportional representation by means of single transferrable vote. It may be argued that since the party position is clear, there is no need to hold an election through a secret ballot. A political party shall issue tickets to a corresponding number that can be elected. In view of Article 63 A (2), which requires an independent member to give a declaration that he belongs to particular party and after that he cannot violate party discipline. But section 122 (6) of the Election Act expressly provides that poll for the election of the Senate shall be held by secret ballot. It makes two things clear. The election to the Senate is not covered by Article 226 because that Article deals with executive offices or with the elections of Speaker/Deputy Speaker, Chairman/Deputy Chairman Senate, Prime Minister, Chief Minister or the President (First Schedule Clause 12). Section 122 (6) specifically mandates that the election to the Senate shall be held through secret ballot. ECP is therefore bound to hold the Senate Election in accordance with the Election Act.
The stance of the Government is therefore apparently against the law.
It would be safe to conclude that in the absence of appropriate amendment in law the stance of the Government is untenable on both points.
Copyright Business Recorder, 2020