Senate Chairman Sadiq Sanjrani has endorsed the government’s plan to hold the upcoming Senate elections through open ballot without introducing a constitutional amendment and has told the Supreme Court that openness and transparency in the elections is in the larger national interest.
“We are of the view that openness and transparency in the Senate elections is in the larger national interest,” Sanjrani said in a statement submitted to the apex court bench which is hearing a presidential reference seeking the SC’s guidance to interpret Article 226 of the constitution. The chairman said the Senate believes that interpretation of constitutional terms or provisions which promotes public welfare, democracy and fairness in the election process is the demand of all stakeholders.
“The Election Commission of Pakistan (ECP) is constitutionally charged with the responsibility of holding elections honestly, justly, fairly, and in accordance with law.
“[This] task could not possibly be performed unless and until the constitutional and legal framework for elections is comprehensible, logical and consistent with the best international standards especially with regard to elections of the Upper House,” the chairman stated.
He said Article 59 of the Constitution provides for composition and term of office for the Senate but it is silent on how the polls to elect members of the Senate would be held.
“Article 226 provides that all elections under the Constitution excluding elections of prime minister and chief ministers would be held through a secret ballot.
“The Elections Act 2017, enacted pursuant to Article 222 of the Constitution, vide section 122(6), provides for detailed procedure and secret balloting for the polls to elect members of the Senate”.
He said the Senate believes that the interpretation of above provisions of the Constitution and the law vis a-vis the issue of secrecy or otherwise in the Senate polls is the exclusive domain of the Supreme Court being the top most court of the country.
However, he said, if a provision of the Constitution is amenable to two different interpretations, the Supreme Court has always adopted the interpretation which advances greater public welfare and larger national objectives.
Sanjrani said the Constitution is a living document which portrays the aspirations and genius of the people and aims at creating progress, peace, welfare, amity among the citizens.
“Therefore, while interpreting its different articles, the approach of the courts should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.” He said it is prerogative of the parliament to amend Articles 59, 63 and 226 of the Constitution but at the same time it is also the prerogative of the apex court to interpret provisions of the Constitution.
The pendency of any bill before the parliament does not by itself bar exercise of powers under Article 186 of the Constitution.
“[There] is consensus among all stakeholders including parliamentarians, political parties, intelligentsia, journalists and civil society that free and fair elections to elect members of the Senate of Pakistan would promote transparency and accountability in the electoral process.
“[It will also] acknowledge respect for the will of the voters, strengthen political parties and their discipline which is essential for parliamentary democracy.”
He said in any state the authority of the government can only derive from the will of the people as expressed in genuine, free and fair elections. However, the nature of elections direct or indirect determines the right to vote. In direct elections secret voting is the fundamental principle whereas if the elections are indirect then electorates are bound to follow party lines. The elected representatives are answerable both to voters and party and they are bound to follow the party line while voting.
Sanjrani stated that the party which has awarded them tickets to contest the elections has some legitimate expectations about which an electorate is supposed to know. “If he or she wants to exercise his or her vote in a free manner, he or she should have courage and stand up to say to whom he or she wants to give a vote and then face the consequences.
“Meaning thereby, party lines or party directions vis-a-vis indirect elections are not inconsistent with the Constitution or any other law of the land on the subject”
He said pursuant to the Senate elections held in March 2015, the issue of rigging and floor crossing came to the limelight which led to a debate regarding mode of elections of members’ Senate of Pakistan. The Upper House assumed its role and responsibility by taking up the issue on its own.
“The House Business Advisory Committee (HBAC) of the Senate took up the matter and after discussing all aspects it was decided that the matter may be brought before the House for discussion and recommendations. “As per the decision of HBAC, the ‘Mode of Elections of the Members’, Senate of Pakistan’, was discussed in the House on 7 August, 2015. Members debated the issue and expressed views above party lines. The House after extensive debate felt the need to constitute a Committee of Whole on the matter.
“Accordingly, a motion was moved by the Leader of the House on 10 August, 2015 and Committee of the Whole was constituted to consider mode of elections of members of Senate, pros and cons of single transferable voting system, poll reforms and other ancillary matters.
“The committee recommended a mechanism of printing the name of the voter on the ballot paper and giving authority to the party head to seek details after the election. The report of the committee is already annexed with the reference filed by the president,” the statement added.