ISLAMABAD: A larger bench of the Supreme Court will take up reference regarding holding of Senate election either through a "secret ballot" or an "open ballot" on January 4, 2021. A five-member bench, headed by Chief Justice Gulzar Ahmed, and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Yahya Afridi, will conduct the hearing.

President Dr Arif Alvi on December 23 through Attorney General for Pakistan Khalid Jawed Khan had filed a reference under Article 186 of the Constitution seeking the apex court's opinion, "Whether the condition of 'secret ballot' referred to in Article 226 of the Constitution is applicable only for the elections held 'under' the Constitution such as the election to the office of President of Pakistan, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate held under the Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41 1 Pat 1, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Election Act, 2017."

The reference stated, "The elected members of the Assemblies who form the electoral college for election to the Senate are not free agents of their will as such. Having been elected on party ticket, they are bound by party discipline."

Therefore, when voting in the election for Senate, they act as agents and trustees of their party.

While they are absolutely free to debate within their respective political parties for the selection of candidates for Senate, but once the party has selected its candidates and awarded party tickets, the members owe an obligation to follow the decision of the party and vote accordingly.

If the coming elections to the Senate are yet again marred by vote buying owing to secrecy of ballot as has happened in the past, this would undermine the confidence of the people in democratic process. The interpretation of the Constitution and the laws is the exclusive domain of the judiciary with the Supreme Court as the final court.

The reference states even if Article 226 of the Constitution was amenable to two possible interpretations, the Court has always adopted the interpretation which advances greater public welfare and good.

Copyright Business Recorder, 2020