Horsetrading secrets

There is an unfortunate impression of the government having painted itself into a corner with the sudden demand for open-ballot Senate elections, with both a reference to the Supreme Court being heard, and an ordinance promulgated for an open-ballot, provided that the reference is decided in the government’s favour. Meanwhile, the Election Commission of Pakistani has issued an election schedule for March 8, with the first step being the filing of nomination papers, as well as the award of party tickets to those who will almost surely be elected.

It was not intended that those filing nominations would not know for sure whether the elections would be by open ballot or secret, but that is the situation that has transpired. The secrecy of the ballot is to be dispensed of in writing, with it being made obligatory for MPAs to sign their ballot papers, so that there is a written trail of anyone violating the party line. It is also perhaps the only way of preserving the single transferable vote system that ensures that Senate seats go to parties according to their strengths in proportion to their strengths in provincial assemblies.

The present tangle has been created because of the KP Assembly, where the PTI not only has to mince there with 95 out of 145 seats. Though there has been some change because primarily of the merger of FATA into KP, but even now, KP MPAs have fewer votes than, but elect the same number of Senators as, the other provinces. It is a little surprising that the addiction to selling votes did not emerge in Balochistan, which has the smallest number of MPAs, but is only in KP that Senate vote selling has become a perk of office. The reason might be that anyone attempting to buy a Senate seat would need a large sum of cash available. That was possible only for drug lords, who found that an independent seat in the Senate helped them in business.

Before the merger of FATA with KP, the FATA MNAs, of whom there were 12, elected eight Senators. As they were elected at three-yearly intervals, it meant that 12 people elected four. As the heroin business had made significant inroads in FATA, the seats were up for sale. The idea then spread among KP MPAs, who realized that there was a market for their votes. FATA MNAs did not come under the radar because they were elected on a restricted franchise and did not belong to any party. They were supposed to have been elected as independents, but always supported the largest party. Similarly, the Senators they elected also always supported the government. Indeed, the FATA MNAs and Senators acted more as ambassadors of FATA to Pakistan than as members of the legislature. Members of a legislature might find themselves in opposition on occasion, but ambassadors always deal with the government of the day, even if it has changed overnight.

Democracy has evolved over the centuries. Pakistan’s basic problem is that it was introduced in Pakistan full-blown, so it might be that something for which there was a huge struggle, should not be valued, and its fundamental nature not seen. The secret ballot is one such component of democracy. Secrecy of the ballot has been ended or weakened by totalitarian regimes, and it was introduced to prevent vote-buying. That secrecy should be considered a means to trading indicates that the journey down the slippery slope is not over.

KP has by and large respected the PTI mandate, and in 2018, allowed it to get its ticket-holders elected. That is expected to happen this election as well, but in the meanwhile, Imran Khan has gone down the open-ballot path, and taken his party with him. One of the problems is that the voting system is complicated enough for there to be genuine mistakes by MPAs. It is not enough to exercise all of one’s choices, but MPAs must be careful only to vote for one candidate, the one they have been allocated to.

The problem seems to be that Imran Khan has not got the control he thought he should have got as a result of the 2018 election. The sentiment he has been expressing, that the tenure of five years is insufficient, neglects the fact that he only got a chance to contest because of that five-year limit. If there was an unlimited tenure, Mian Nawaz Sharif, elected in 1990, would still be in power today. As a matter of fact, he would probably not have had a chance, for Benazir Bhutto, elected in 1988, would have definitely held office till her assassination in 2008. It could even be argued that she was killed because she was campaigning after having been out of office. Under Imran’s idea, she would still be in office, and not campaigning, which would have made that assassination moot.

It should be remembered that Imran is speaking now of tampering with the mandate’s duration, even though it is such a basic component of democracy, only because he has seen that democracy’s fundamentals can be argued away. This seems to be an understanding that the secrecy of the ballot is one such principle.

This may be behind the confusion visible in the government seeking two legal remedies at the same time, by moving the reference, and by promulgating the ordinance. True, the ordinance is conditional on the reference, but that means that the Supreme Court must give judgment in the reference, so that the ordinance can either be implemented or not. There is also the danger of circularity. Any ordinance, or even act, is subject to being struck down by the Supreme Court for being against the Constitution, so the proviso does not really mean anything.

Then there is the basic structures doctrine, which has been used in India by the Supreme Court to strike down constitutional amendments by Parliament, on the ground that there are certain basic features of the Constitution, which even a duly passed constitutional amendment cannot change. In India, the application was that fundamental rights cannot be abridged. In Pakistan, democracy is one of the parts of the basic structure that has been identified by the Supreme Court in the 2015 judgment of the full Supreme Court in challenge against the 21^st and 22^nd Amendments, which provided for a parliamentary judicial commission to oversee judicial appointments, and the setting up of military courts. The features identified included democracy, the federal parliamentary form of government and the independence of the judiciary. So far, no constitutional provision has been struck down in Pakistan, but it is worth noting that so far, it has been mentioned in connection with judicial independence. Whether the issue of the secrecy of the ballot would be seen as an attack on the fundamental of democracy or not, has not been adjudicated, but there is a strong case for it being considered as such.

Democracy has evolved over the centuries. Pakistan’s basic problem is that it was introduced in Pakistan full-blown, so it might be that something for which there was a huge struggle, should not be valued, and its fundamental nature not seen. The secret ballot is one such component of democracy. Secrecy of the ballot has been ended or weakened by totalitarian regimes, and it was introduced to prevent vote-buying. That secrecy should be considered a means to trading indicates that the journey down the slippery slope is not over.

The exception in the Constitution, for PM and CM elections, was meant to prevent any PM or CM being put in the invidious position of including in his or her Cabinet someone who had voted against him. However, no parallel danger exists for Senate elections. The convenience of the government, in finding seats for Senators, does not outweigh the benefits to democracy.