Dr Muhammad Khurram
SENATE elections in Pakistan have historically been marred by intrigues, alegations of corruption and nepotism. Elections to Senate in Pakistan are indirect and held by secret ballot.
The very nature of these elections makes them susceptible to allegations of money and influence.
Hence, sporadic voices of reforming the Senate elections have not been uncommon in the past.
Yet it is the current government which seems hell bent upon introducing the concept of ‘show of hands’ in Senate elections.
Article 226 of the Constitution states ‘all elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be held by secret ballot”.
Plain reading would interpret article 226 in the direction of secret ballot. There are legal experts who contend that senate elections do not fall in category of elections under the Constitution and therefore not in the ambit of Article of 226.
It was on this basis that Attorney General of Pakistan wrote a letter to Prime Minister which stated that contrary to conventional wisdom, Senate elections do not fall in the purview of Article 226 but are governed by Section 122(6) of Elections Act 2017.
If this understanding is correct, then Section 122(6) could be amended through a simple ordinance by the President resulting in Senate elections being held through show of hands.
The letter however, also advised that keeping in view extreme sensitivity of the matter, federal government may file a reference to apex court under Article 186.
It would be pertinent to mention here that Article 186 of the Constitution empowers the President to send reference to apex court on any question of law which he considers to be of public importance.
The Supreme Court shall consider the reference and report its opinion to the President of Pakistan.
Interestingly, the government, despite clearly lacking numbers in Parliament had tabled the 26th Constitution Amendment Bill in the National Assembly to hold Senate polls through open vote.
The step had been taken without taking the opposition on board. Opposition parties rejected the move and lodged a strong noisy protest in the National Assembly when Speaker tabled the bill before the house for a general discussion.
This is the background which has led to anticipated opinion of the Supreme Court likely to be delivered on Monday.
In the meantime, the government has promulgated an ordinance amending the Elections Act 2017 for the use of an “open and identifiable ballot” in the coming Senate elections.
The Ordinance was promulgated while reference was pending in Supreme Court. Hence, the Ordinance was made subject to decision of Supreme Court.
A damning loophole in the ordinance was that it presumed that Supreme Court would decide the matter before Senate elections. It could have been seen as influencing the apex court. Luckily for government, the discussions have not focused on this aspect.
Advisory ruling of Supreme Court is being anxiously anticipated as I write this article. If the Supreme Court rules that there is no need for amending the Constitution for change in method of Senate elections the ordinance would be applicable and March elections would be held through show of hand.
If the apex court rules that change in method of elections requires a constitutional amendment then March elections would be through secret ballot.
If the Supreme Court does not issue a ruling in the matter, elections would be held through open vote as the ordinance has been made effective immediately.
The decision would therefore be monumental in terms of interpretation of the constitution as well as upcoming elections.
By the time, this article is published, the decision of apex court would hopefully already be public.
Hence, I thought of this as a great opportunity to give my two cents in the matter and the paradigm which the decision is likely to take.
The constitution itself does not define the term ‘elections’. However, Senate as a whole is discussed in Article 59 of the Constitution.
A cursory glance at article 59 makes it clear that it uses the term ‘elections’ repeatedly in its clauses.
Where a word is not defined by statute it is to be interpreted using the ordinary meaning of the language of the statute.
A statute is to be read word for word and is to be interpreted according to the ordinary meaning of the language, unless a statute explicitly defines some of its terms.
This is called ‘plain meaning rule’ which provides a mechanism that prevents courts from taking sides in legislative or political issues.
As the term ‘election’ has not been defined in constitution and Article 59 (which deals with senate) uses the term ‘elections’, I am very clear that Senate elections are governed by Article 226 in terms of plain meaning rule.
Due to this very reason, attempts to take Senate elections out of scope of Article 226 are likely to fail.
—The writer is a civil servant having an LLM from Harvard Law School, MSC from University of Oxford and an LLM from University of Turin/WIPO academy.