The following article was published in Dawn on March 15, 2015 at the following link

https://www.dawn.com/news/1169601/senate-questions

THE three-year democratic ritual of electing half the Senate is over but it has left a trail of questions that need to be discussed, debated and resolved in a democratic spirit.

The most urgent is the question of election of Fata senators. Four Fata seats remain vacant as the election could not take place due to a last-minute, ill-advised and ill-timed government move to change the mode of election of the Fata senators through a presidential order.

Article 59 (1)(b) of the Constitution leaves the manner of election of eight Fata senators to the president who may prescribe it through an order. The ECP criticised the order of March 4 and postponed the election of the four Fata senators that was scheduled for March 5.

Are drastic modifications required in the system?

The government rightly decided to withdraw the order restoring the old system but the parliamentary committee on electoral reforms should consider various options to evolve a better system for the future. One possible option is to declare the entire National Assembly as the electoral college for Fata senators as is the case for senators from Islamabad Capital Territory.

Twelve Fata MNAs, who constitute the electoral college for eight Senate seats, are usually the focus of allegations of vote-selling not only because they constitute the smallest electoral college but also because most Fata MNAs are independent and therefore do not subscribe to party discipline unlike their counterparts from the four provinces and the capital.

Allegations of ‘horse-trading’ are not confined to Fata legislators. The allegations against MPAs and MNAs for selling their votes to rich Senate candidates routinely reverberate in the country. Despite the oft-repeated allegations, there is no credible evidence to establish that large-scale vote-selling took place.

The result of the recent Senate election is not very different from the calculations made before the election based on party strengths in each legislature. Apparently, the party discipline, peer pressure and strong media watch has not allowed any major vote-selling pattern.

In a few cases, MPAs have voted against party guidelines but in most such cases they did so based on their genuine liking for another candidate for whom they cast one of their lower preferences in addition to voting for their party candidates.

Since it is a single transferrable vote that each legislator casts, they don’t vote for just one candidate. It is therefore not the case of systemic failure that requires drastic modifications in the system.

It has been suggested that the current secret balloting for the Senate be replaced with open voting. First, the problem is not so widespread so as to justify a constitutional amendment. Second, legislators should be allowed to retain some independence of action. Already there is hardly any room for exercising individual preferences for legislators in the passage of the budget, constitutional amendments, vote of confidence etc.

Further limiting independence will intellectually suffocate the legislators. If legislators are to be bound by law to vote as per party guidelines then the Senate seats can be filled through a similar exercise as adopted for the reserved seats for women and non-Muslims in the assemblies. Under such a system, each party may get seats in the Senate in proportion to their strength. Such a modification in the system, however, is uncalled for.

Some politicians have suggested direct election for the Senate. Diverse systems exist for the formation of a senate or a senate-like institution around the world.

US senators are directly elected under a first-past-the-post system. Australia directly elects its 76 senators but under a proportional representation system. India elects Rajya Sabha members indirectly through its state legislatures. Members of the German Bundesrat are indirectly appointed by provincial legislatures. The governor general of Canada appoints Senate members on the prime minister’s recommendation.

Each country has to design its system in light of its needs and ethos. Direct election will bring its own issues such as very large constituencies requiring expensive campaigns and management. Senate powers will then have to be revisited which will have a profound impact on the federal political architecture.

We have not yet been able to fully absorb the ramifications of the 18th Amendment and it may be too soon to modify the role and powers of the Senate.

It is more advisable to democratise and organise political parties to act as institutional checks on possible electoral malpractices such as vote-selling.

Strengthening political parties in Fata will also improve the quality of Senate elections. Experience has shown that vigilant public opinion and organised and democratic political parties are a much better guarantee against malpractices than new laws and greater penal powers for the top leadership.