ISLAMABAD - The federal government Wednesday moved the Supreme Court of Pakistan requesting it to interpret Article 226 of the Constitution for holding of Senate elections through either ‘secret ballot’ or ‘open ballot’.

President Dr Arif Alvi filed the reference under Article 186 of Constitution seeking opinion of the apex court on question of law of public importance saying, “Whether the condition of ‘secret ballot’ referred to in Article  226 of the Constitution is applicable only for the elections held ‘under’ the Constitution such  as  the election  to the office of President of Pakistan, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate of Pakistan held under the Elections Act, 2017 , enacted pursuant to Article 222 read with Entry 41 1 Part 1, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Election Act, 2017.”

Attorney General for Pakistan Khalid Jawed Khan, who had filed the reference stated, “The elected members of the Assemblies who form the electoral college for election to the Senate are not free agents of their will as such. Having been elected on party ticket, they are bound by party discipline.”

He added that therefore, when voting in the election for Senate, they act as agents and trustees of their party. While they are absolutely free to debate within their respective political parties for the selection of candidates for Senate, but once the party has selected its candidates and awarded party tickets, the members owe an obligation to follow the decision of the party and vote accordingly.

The AGP continued that if the coming elections to the Senate are yet again marred by vote buying owing to secrecy of ballot as has happened in the past, this would undermine the confidence of the people in democratic process.

He further stated that the interpretation of the Constitution and the laws is the exclusive domain of the judiciary with the Supreme Court as the final court.

Khan maintained that the requirement of secret ballot for election for Senate is not by way of a constitutional mandate. It is only by way of statutory provisions namely Section 122(6) of the Elections Act, 2017, which may be amended by an Act of Parliament or through an Ordinance promulgated under Article 89 of Constitution.

He also said that had the framers of the Constitution intended to apply the principle of secrecy of ballot for the Senate election also, they could have easily provided so in Article 59 of the Constitution as been done in the case of the election of the President where ‘secret ballot’ is specifically mentioned in Clause 12 of the Second Schedule to the Constitution, which provides the procedure and machinery for the election of the President.

The AGP mentioned that the framers of the Constitution consciously left it to the wisdom of the legislature to frame election laws under Article 222 of the Constitution and left it to the legislature to provide for secret or open or any other method of voting, as may become available owing to the developments in the technology.

He said that the hands of the legislature cannot be tied by way of implication or assumption of a constitutional prohibition where none exists specifically. This is all the more so when the matter does not impinge upon fundamental or vested right of the citizens. Secrecy or openness of ballot is only relatable to the machinery provisions of a statute. Thus, the legislature in its wisdom may equally provide for open ballot for election to the Senate by substituting the word ‘secret’ with ‘open’ in Section 122(6) of the Election Act, 2017.

The President submitted that even if Article 226 of the Constitution was amenable to two possible interpretations, the Court has always adopted the interpretation which advances greater public welfare and good. Through acceptance of the interpretation of Article 226 national objectives, including to promote transparency and accountability in the electoral process; acknowledge respect for the choice and desires of the citizen voters; discourage floor crossing, use of laundered money for vote buying in elections, which grossly insult the mandate of the people; empowers the legislature to legislate through ordinary legislation and adopt means most suitable by providing machinery and procedure for ensuring free, fair and transparent elections; and prohibit forever the entry of vote buying undesirable candidates from entering the sacred chamber of parliament.

Earlier, President Dr Arif Alvi gave nod to the Prime Minister’s proposal for sending the reference to the Supreme Court under Article 186 of the Constitution for seeking opinion of the apex court on the Senate election.

Earlier this month, the federal government had decided to move the dates of Senate election and hold it in February 2021 instead of March.

During a meeting headed by Prime Minister Imran Khan, the cabinet had also announced the use of open balloting in the upcoming elections.

The PTI government’s bid to hold the Senate polls comes after the Pakistan Democratic Movement unveiled its plan to delay elections by resigning from the federal and provincial assemblies.

The elections cannot be held more than a month before the outgoing senators’ term ends nor can they be delayed beyond the expiry of such term.

The elections are to be held for 52 seats of the upper house because as many members of the 104-member Senate will retire on March 11.