Matters related to ballot secrecy will be decided by parliament, CJP says during hearing on Senate polls

Chief Justice of Pakistan (CJP) Gulzar Ahmed on Wednesday observed that matters related to ballot secrecy had been left to the parliament and would be decided by it.

During the hearing on the presidential reference on holding Senate elections through open ballot, being heard by a five-member bench of the top court, CJP Ahmed said: “We are not the parliament and neither can we reduce its authority.”

He remarked that party leadership has no role in democracy; decisions are taken by the political party [as a whole], not the leadership.

“Nobody can enforce their decisions. Party decisions should be taken in a democratic manner. The Constitution mentions parties, not their leaders.”

The chief justice observed said it has to be seen how parties decide who to vote for. “Do parties have minutes of their meetings?” he asked.

The CJP said the court had three questions in front of it.

• Is Article 226 applicable to the Senate elections or not?
• Can proportional representation be done through single transferable vote?
• Are elections conducted according to the Constitution secret?

Continuing his arguments, PPP lawyer Senator Mian Raza Rabbani pointed out that examples presented in the apex court were related to the lower house of parliament whereas the presidential reference was concerned with elections in the upper house.

“A vote is the secret of the voter which he can share with another voter but not the state. The Constitution mandates that no pressure of any kind be brought on the voter. If the vote is made identifiable, then it will no longer be [only] the voter’s secret.”

He went on to add that if the court had decided on open ballots, then the upcoming Senate elections would be held under a “temporary law” that was already present in the form of the presidential ordinance.

He clarified that he was talking about a Constitutional matter and not the presidential ordinance. “According to the Constitution, Senate elections cannot be held under a temporary law.”

Rabbani told the court that the Constitution had kept the vote secret and assured the voters’ independence. “Keeping it secret is the voter’s right and making the ballot identifiable amounts to reducing their independence,” he argued.

“The question is whether the ballot is secret or not. Ballot is not secret but when it comes into the hands of the voters, its secrecy starts […] Even state officials cannot see who the person has voted for.”

Talking about the court’s concern on the point of proportional representation, Rabbani said political parties have proportional representation in the National Assembly whereas provinces have proportional representation in the Senate.

Justice Ijazul Ahsan observed that Rabbani’s arguments were applicable to elections for NA seats which had a system of “free votes” that ensured the voters’ independence.

“[The word] free has not been used for Senate polls so it is not necessary to have secret ballots [in its election,” he remarked, adding that if the concept of proportional representation was kept in mind, then there was no need to keep the votes secret.

He asked Rabbani whether he would consider it correct if the parliament passed legislation on holding Senate elections through open ballot.

“Is every MPA (member of the provincial assembly) free to vote [for who he wants]? Do international agreements call for holding Senate elections through open ballot?” the SC judge questioned, adding “The Supreme Court is not bound to any international agreement.”