TERENCE J SIGAMONY

ISLAMABAD: The Supreme Court on Wednesday told the Election Commission of Pakistan (ECP) that it (ECP) would be responsible if the party position in the national and the provincial assemblies was not reflected in the Senate.

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 on Wednesday heard a presidential reference regarding holding of the Senate election either through a “secret ballot” or an “open ballot”.

The chief justice questioned: what will happen if any political party gets votes in the Senate which are disproportionate the number or strength to its members in the national and the provincial assemblies?

Justice Ijaz said the ECP will be responsible if the position of political parties in the national and the provincial assemblies is not reflected in the Senate, adding that such a situation renders the parliamentary form of democracy dysfunctional.

The judge said the Constitution has mandated the ECP to hold elections “justly, fairly, honestly, and in accordance with law and corrupt practice be guarded against”.

Justice Ijaz said in Article 51 direct and free vote is mentioned for the elections of the National Assembly members, but in Article 59(2), the system of proportional representation by means of a single transferable vote is given for election of the Senate members.

However, Justice Afridi noted if the party position in the National Assembly and the Provincial Assemblies has to be reflected in the Senate then why its members are not selected through parties’ lists as it is done in the case of minorities and the women, whose election is also through proportional representation.

Justice Afridi said the word “election” is used for senators, which is through proportional representation by a single transferable vote.

He asked if the parties’ position has to be reflected in the Senate then what about the election for independent candidates?

At the outset of proceedings, Barrister Sajeel Sheryar Swati on behalf of the ECP submitted a revised report, saying it is more comprehensive and detailed.

He said the steps were taken in the past and would be taken in the light of the Supreme Court’s directions to curb the “corrupt practice” in future as well.

He submitted that the vigilance committee comprising officials of Federal Board of Revenue (FBR), has been State Bank of Pakistan (SBP), Federal Investigation Agency (FIA), National Accountability Bureau (NAB), and National Database & Registration Authority (NADRA) has been constituted to assist the commission in discharge of its duties. The Commission has formulated terms of reference for the committee, he added.

The candidate would have to submit an affidavit stating that he has not indulged in the corrupt practices and distributed money among its electors. A code of conduct has been prepared for the election, which will be sent to all the political parties for their consideration.

He also said complaint cells have been set up in Islamabad and the provincial headquarters, adding that opposition candidates and the public at large can file complaints against any candidate electronically.

Justice Ijaz said the reply has, however, failed to address the fundamental question raised by the court.

He asked: what does the word “secrecy” mean in the contact of National Assembly and Senate elections? According to him, “secrecy is never absolute or to remain till the end of the world”.

He asked the counsel for ECP to prove through the Constitution or the judgments of the apex court that “secrecy is perpetual”.

The counsel was further asked to examine the definition of “secrecy” in the Black Law Dictionary.

Justice Mushir Alam said that secrecy provided in Section 178 of the Election Act, 2017 is limited”.

Secrecy is before the polling or marking of the ballot paper and inserting it into the ballot box.

He said after polling, ballots remain in the custody of the ECP.

Barrister Sajeel submitted that ECP is of the view that “secrecy means complete secrecy, perpetual and not to be shared”.

Marking the ballot paper identifiable with any mark will be a breach of secrecy of the ballot and a violation of Article 226.

He stated that according to Section 81 of the Act, election under this Act shall be held by secret ballot subject to the provisions of Sections 93, 94, and 103, adding that the commission deliberated the secrecy of ballot in the light of Sections 81, 185, and Article 226 of Constitution.

Attorney General for Pakistan (AGP) Khalid Jawed proposed that instead of serial number unique bar codes be printed on the ballot papers for the Senate election.

In case of horse-trading, the vote cast would be traceable through the barcode.

Justice Ijaz said it is the mandate of the ECP to hold elections under Article 218(3) of Constitution fairly, honestly and justly.

He said the moment proportional representation is violated the ECP will be responsible for it.

The AGP and the advocate general Khyber-Pakhtunkhwa have concluded their arguments, and now the PPP Senator Raza Rabbani, and the advocates general of Punjab, Sindh, and Balochistan will start making their submissions from today (Thursday).