The following article was published in Dawn on February 21, 2021 at the following link.

https://www.dawn.com/news/1608523/open-or-secret

THE Senate of Pakistan has existed since the 1973 Constitution was passed by the fifth legislature of the country. During this time, the election of senators has always been held through secret ballot. Although there have been sporadic voices in the past demanding an open ballot system, it was never suggested that the Constitution did not require Senate elections to be held under secret ballot. It was understood that a change in the system of secret ballot for the Senate would need a constitutional amendment.

Article 226 of the Constitution reads: “All elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.” There was broad consensus until recently that the phrase “All elections under the Constitution” included the Senate election as well.

It was only about two months ago that the president sought the opinion of the Supreme Court on Prime Minister Imran Khan’s proposal to hold Senate elections through open ballot/show of hands. In the reference, invoking advisory jurisdiction of the Supreme Court under Article 186 of the Constitution, the president has sought the Supreme Court’s opinion on amending Section 122(6) of the Election Act, 2017, without amending the Constitution, to hold Senate elections through open ballot. While the Supreme Court is hearing various arguments on the reference, two important developments have taken place.

The president promulgated an ordinance on Feb 6 making it possible to hold Senate elections through “open and identifiable” ballot by amending the Elections Act, 2017, in case the Supreme Court concurs with the government’s argument that the Senate election is not an election under the Constitution. This is an extraordinary piece of legislation as it is subject to the Supreme Court’s opinion. In addition, instead of developing a consensus through dialogue and debate within parliament and outside, using an ordinance for legislating on such a controversial subject is also extraordinary. Another development following the reference is the announcement of the schedule of the Senate election by the Election Commission of Pakistan (ECP) that has fixed March 3 as polling day.

Following the receipt and scrutiny of the candidates’ nomination papers, the ECP is scheduled to announce the final list of candidates by, perhaps, Feb 22. It is at that point that the ECP will start printing the ballot papers. In case the Supreme Court does not give its opinion on the reference by that date, it will become difficult for the ECP to manage the printing and distribution of the ballot papers. Even more important are the implications of Section 239 of the Elections Act, 2017, which requires that 15 days be provided for public suggestions on the new rules. Since the ECP will be required to frame the rules for “open and identifiable” ballots in case the court’s opinion is in favour of such a move, it appears almost impossible to enforce this section as less than 15 days are available before polling day.

Besides these technical difficulties, there are some serious concerns about the desirability of “open and identifiable” ballots. Doing away with the secret ballot system for the Senate election will have a serious impact on the freedom of choice which the system so far provided to legislators. Pakistan has experimented with a number of options pertaining to freedom of choice for legislators.

Initially, the 1973 Constitution did not place any major restriction on such a choice by legislators. During prime minister Nawaz Sharif’s second term, a number of restrictions were placed on legislators — to a point that almost all voting by them had to follow party direction. Following the constitutional amendments introduced during Gen Musharraf’s time and later as a part of the 18th Amendment, it seems that Pakistan has achieved some constitutional balance in this respect.

There are four distinct acts, ie the election of the prime minister and chief minister, vote of confidence or no-confidence for the prime minister or chief minister, constitutional amendment and money bill on which legislators have to follow the party line, otherwise the defection clause becomes applicable to them. Although the government has said that it does not want to bring voting for senators against the party line into the scope of the defection clause, an open ballot will certainly restrict legislators’ freedom of choice, and the internal democracy of political parties will be further weakened.

If there are instances of some legislators voting for senators under monetary inducement, the solution is not to restrict the freedom of all legislators. The right course is to exercise greater caution while picking party candidates for legislatures.