ISLAMABAD: The Supreme Court of Pakistan on Tuesday rejected a request by the Pakistan Tehreek-e-Insaf (PTI) to become party to a pending petition, seeking swift arrangements to grant overseas Pakistanis the right to vote before the 2018 general elections.
Giving PTI the option to file a separate application, a three-member SC bench, headed by Chief Justice Mian Saqib Nisar, remarked that PTI’s role in the National Assembly to give voting rights to overseas Pakistanis had to be examined.
The court is hearing petitions moved by a group of citizens stating that denying overseas Pakistanis the right to participate in the democratic process would constitute a refusal by the government to carry out its constitutional obligations.
At the outset of the hearing, Justice Ijazul Ahsan inquired whether any new legislation had been passed about the issue. PTI counsel Anwar Mansoor Khan told the court that a clause in the Elections Act 2017 asked the Election Commission of Pakistan (ECP) to test the feasibility of voting by overseas Pakistanis in by-elections.
Clause 94 of the Act states: “The commission may conduct pilot projects for voting by overseas Pakistanis in by-elections to ascertain the technical efficacy, secrecy, security and financial feasibility of such voting and shall share the results with the government, which shall, within fifteen days from the commencement of a session of a house after the receipt of the report, lay the same before both Houses of Majlis-e-Shoora (Parliament).”
Regarding PTI’s opposition to the clause, the chief justice observed that PTI was part of the legislative process for the Elections Act to be passed. He asked whether PTI had voted in favour of the bill and if it did, what grounds there were for the party to now challenge the bill in the court.
Justice Nisar observed that parliament apparently did not consider the apex court’s April 2013 judgement while drafting the new election law. Observing that overseas Pakistanis gave huge donations to PTI, the court asked the PTI to present record of debates in the parliament on the Elections Act.
“We will see who has how much affection for overseas Pakistanis in the parliament,” the chief justice stated when the PTI counsel pointed out that the Constitution gives non-resident Pakistanis the right to vote.
“We want to see if this case is equivalent to hoodwinking [the court],” he said.
Justice Nisar asked ECP Secretary Babar Yaqoob Fateh, who was present at the hearing, whether overseas Pakistanis had been allowed to vote in the two by-elections held after the passage of Elections Act 2017.
The ECP secretary responded that the commission had written to the National Database and Registration Authority (NADRA) to develop a software to enable expatriate Pakistanis to vote, but the authority sent documents to enter into a formal agreement. The documents sent by NADRA did not conform to basic legal requirements, he said.
In response to the bench’s question whether overseas citizens of India could vote during elections, Fateh said that expatriates could not directly vote in India.
The chief justice observed that the SC had repeatedly declared the parliament to be supreme. “Is it SC’s job to give the right to vote?” Justice Nisar asked.
He told the ECP secretary that the commission had to take concrete steps to resolve the matter.
“History will remember you [if] you conduct free and fair elections,” Justice Nisar said, addressing Fateh. He added that the court would extend its help in the process if the commission wanted.
When asked by the judge whether overseas Pakistanis would be allowed to vote in the upcoming by-elections in NA-154, the ECP secretary responded that the mechanism to allow expats the right to vote had not been prepared yet.
Justice Nisar observed that if the government did not want to experiment giving overseas Pakistanis the right to vote in by-polls, there was no benefit of having that clause in the election law.
“It appears that Section 94 of the [election] law cannot be implemented,” he regretted, saying that a law should not be enacted if it is only for “display”.
The bench adjourned the hearing until next Tuesday and directed the NADRA chairman to appear at the next hearing in person.
Published in Daily Times, January 17th 2018.
