Senate elections with secret ballot | by Rizwan Ghani


Senate elections with secret ballot

THE Election Commissioner has taken independent decision to hold Senate elections with secret ballot under the Constitution and the Law and its secrecy will be forever. The SC opinion was not binding.

They both cannot change secret ballot and finality because it is the power of Parliament. AG should be removed for wasting precious time of the Court and creating uncertainty.

Any change in the secret ballot would have only made the Senate election more controversial. It would have been best if only reference was returned as inappropriate question.

The Supreme Court has given its opinion on the question raised in the Presidential Reference about holding Senate election by secret ballot under the constitution or law.

In its 4-1 short opinion, four judges entertained the question and said it was both.

But Justice Yahya Afridi disagreed with the majority and returned the reference unanswered for being not a law question.

The decision of EC to hold Senate elections under the 1973 Constitution is a step in the right direction.

Government claims of victory were unfounded. According to Ex-AG Irfan Qadir, the opinion has not allowed any tempering with the secrecy.

The SC has done no interference in the constitution and situation is unchanged. The ballot is secret forever not just for the day of election.

The removal of secrecy of ballot is itself corruption which will force voters out of fear to vote for the powerful. Aitzaz Ahasn also said that adding any number to the ballot paper will make it open.

The Senate elections have been held under the Constitution for the last 50 years. There is no confusion in it. The question was inappropriate and that is why dissenting justice returned the question unanswered.

Unless there is change in the Article 226 of Constitution the Senate election will continue to be held with secret ballot. The SC opinion has also upheld it as “Under the Constitution”.

Only Parliament can change the Constitution as per the prescribed procedure which includes two-thirds majority. The Senator who was voting was blind so he needed assistance.

It was the reason for removing secrecy of ballot in the case of Niaz Ahmad v Azizuddin and others (PLD 1967 SC 466), where it has been held that secrecy is not absolute and that “the secrecy of the ballot, therefore, has not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election”. The 1973 Constitution is clear but those in power are behaving as blind.

The government members bluffed the public by saying that it is a splendid opinion for transparency and there is nothing wrong in demanding identifiable ballots from the ECP on its basis.

Aitzaz Ahsan said that EC will have to work out methodology as per the opinion of the SC. But Irfan Qadir was of the view that the ECP is independent and there is no article in the Constitution especially 186 under which the SC can order it.

He dismissed any idea of adding barcode to the ballot. Regarding ruling party’s claims of Senate election corruption, there are many ways to elimination it. The case can be referred to ECP, NAB, action can be taken under penal code or sent to police.

The video evidence used by the government to make a case against the secret ballot in the SC should now be handed over to state to punish the culprits.

Sarkozy has been sentenced to jail on corruption charges by a judge in a case filed by the state.

How can party heads, legislators and politicians act as judge and jury both instead of facing the law.

The presidential ordinance is also gone because it was linked to SC opinion. This Senate election will be held under the Constitution with secret ballot.

The AG statement that government is bound to respect the opinion of the SC is meaningless.

Even if he says so the government is free unless there is something in the opinion which the government can use for political point scoring. It could drag SC in a political controversy.

The SC should therefore not give such opinions in which it looks as if it is doing political engineering.

The decision of the court is not binding if does not follow the Constitution.

The court can interpret the Constitution but cannot rewrite it. If there is anything against the Constitution in the opinion, the ECP can reject it.

It does not mean that there was something illegal in the opinion. The ECP was supposed to hold elections with secret ballot under the Constitution and the Law.

The SC did not interfere in the Constitution and the chaos was made by the cabinet members and other government representatives.

The independent stand of ECP is good news for democracy and Senate election.
—The writer is senior political analyst based in Islamabad.

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