Changing the Mode of Senate Elections

Ending vote secrecy will force every member to toe the party line, leaving nothing to act in accordance with his conscience, writes Farhatullah Babar

Changing the Mode of Senate Elections
Last week the government announced change in the mode of elections to the Senate by switching to open vote instead of the current secret balloting. As the Senate elections are due in March next year, the decision is bound to generate a heated debate.

Complaints of horse trading and use of huge amounts of money to buy votes in Senate election have been very common. It has been argued by the government that a central reason for horse trading is secret ballot and in order to curb it, voting should be open. Some have even suggested in the past that like voting to assemblies, the Senate election may also be held through direct vote.

Horse trading and floor crossing in the Senate last came into sharp focus at the time of vote of no confidence against the Senate chairman last year. As many as 64 senators rose on their seats to endorse a motion of no confidence but when actually put to vote in secret ballot, only 50 senators cast vote in favour of removing the chairman.
Can the constitutional agreement between all political parties at the time be overturned now and the system of single transferable vote changed?

Almost all political parties later formed inquiry committees to probe to identify those who had crossed the floor and went against party line. The exercise has not been very fruitful.

Absence of transparency and allegations of horse trading and floor crossing has cast a dark shadow over the house of the federation and there clearly is need for reforms. However, the matter is not as simple as the government seems to think.

Ending vote secrecy will force every member to toe the party line, leaving nothing to act in accordance with his conscience. That would only further concentrate powers in the hands of parties and its leaders. Party leaders already have powers to unseat a member from Parliament in case of voting against party line in the budget, constitutional amendments and in elections to offices of prime minster and the chief ministers. Is it wise to empower them even more?

The example of the 21st Amendment to set up military courts is illustrative. Perhaps it would not have been passed if members were not bound to follow the party line in the case of a constitutional amendment. While following party line is some areas may be critical it is no less important that individual legislators also have some independence of thought. Otherwise a question mark will be placed over the entire democratic process.

There would also be other complications arising from open voting. The constitutional mechanism of single transferable vote requires that every member of provincial or National Assembly, while voting for each vacant senate seat, will have to indicate his preferences for each seat. Disclosing such preferences will be against the right to privacy, besides having serious implications for the members voting.

Some have argued that the constitutional mechanism of single transferable vote in senate election be done away with and replaced with direct vote. But is that advisable? After all, there must have been reasons for introducing the system of single transferable vote for Senate elections.

The reasons why the framers of Constitution adopted the single transferable vote mechanism are contained in the parliamentary debates at the time of the adoption of the 1973 Constitution and are available in the archives of National Assembly.

Then law minister Hafeez Pirzada explained, “The Senate is the representative of the provinces. Therefore, the Senate has to be elected by the provincial assembly and by a single transferable vote. This is in accordance with the Constitutional Agreement which was arrived at (that) there must be representations of the parties in the Senate in the same proportion as they are represented in the provincial assembly. Therefore, by the single transferable vote, the Senate shall comprise all parties represented in the provincial assembly.”

This indeed was the logic. Can the constitutional agreement between all political parties at the time be overturned now and the system of single transferable vote changed?

The Senate itself has debated the issue. In 2016, the Senate converted itself into a Committee of the Whole to discuss it. Experts from outside were also invited to give their views. The debate centred around two issues. First, whether the Senate election should be held directly or otherwise. Second, how to prevent floor crossing and rigging because of the secret ballot.

The Senate at that time also reviewed international practices. It studied modes of election to the second chambers of House in India, USA, Malaysia, Kenya, Italy, Canada, Mexico, Australia and Ireland to name some. Available literature on the subject was procured and studied. It included highly useful and specialised “Senates around the World”, “Bicameralism Around the World: Position and Prospects” and “Report on Second Chambers in Europe: Parliamentary Complexity or Democratic Necessity 2006.”

After detailed discussions, the Senate concluded that the indirect election indeed was the intention of the legislature and must not be changed into direct election.

About secret ballot, it held that election may be held through secret ballot, however, a proviso may be added to Article 226 of the Constitution to provide that in case of Senate election, the parliamentary party leader may, after declaration of results, ask to be shown to him the ballot paper of his party member to see whether that member had voted in accordance with the party lines. This will largely curb floor crossing in return of monetary benefits. The Senate also recommended that a person shall not be qualified to be member of the Senate unless he is a resident for five years of the province from where he seeks membership.

The PTI government would do well to read the May 2016 report of the Senate Committee of the Whole instead of seeking to reinvent the wheel.

The writer is a former senator