IHC rejects plea against passage of Elections (Amend) Bill

ISLAMABAD – The Islamabad High Court (IHC) on Monday turned down a petition filed against the passage of the Elections (Amendment) Bill, 2022 which disallows overseas Pakistanis from voting electronically.

A single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah conducted hearing of the petition moved by Dawood Ghaznavi and dual national Atif Iqbal Khan through their counsel Arif Chaudhary Advocate. In the petition, they cited the federation of Pakistan through the secretary of Ministry of Law, Justice and Parliamentary Affairs and the Election Commission of Pakistan (ECP) as respondents.

After hearing the arguments of the petitioners’ counsel, the IHC bench dismissed it in limine and noted that the amended section unequivocally acknowledges the right of an overseas Pakistani to vote in the elections.

However, Justice Athar added that nonetheless, the Election Commission is expected to fulfil its constitutional as well as statutory obligations, so as to complete the process at the earliest in order to enable the overseas Pakistanis to exercise their right to vote in the elections.

He also noted that the august Supreme Court in the case titled ‘Dr Farhat Javed Siddique and 15 others v government of Pakistan and others’ (PLD 2018 SC 788) has explicitly referred to ascertainment of “technical efficacy, secrecy, security and above all the financial feasibility.”

“All these factors are to be taken into consideration by the Election Commission in order to enable the overseas Pakistanis to exercise their acknowledged right to vote,” he added.

The bench further said, “No case is made out for striking down the amended section 94(1) of the Act of 2017. For the above reasons, the instant petition is meritless and, therefore, accordingly dismissed in limine.“

In the petition, the petitioners assailed vires of section 94 inserted in the Elections Act, 2017 through the Elections (Amendment) Act, 2022 and the amended provision is as follows: “The Commission may conduct pilot projects for voting by Overseas Pakistanis in Bye-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).”

Court says amended section  unequivocally acknowledges right of an overseas Pakistani to vote in polls

Similarly, the repealed provision which was inserted in the Act of 2017 through the Elections (Amendment) Act, 2021 is reproduced as follows: “Notwithstanding anything contained in this Act or rules made thereunder, the commission shall, with the technical assistance of National Database and Registration Authority (NADRA), any other authority or agency, enable overseas Pakistanis, in prescribed manner, subject to secrecy and security, to exercise their right to vote during general elections in Pakistan.”

During the hearing, the counsel for the petitioners drew attention of the court to judgment of the august Supreme Court rendered in the case titled ‘Ch Nasir Iqbal and others v Federation of Pakistan through Secretary Law and others’ (PLD 2014 SC 72). The counsel further placed reliance on the judgment rendered by the august Supreme Court in the case titled ‘Dr Farhat Javed Siddique and 15 others v Government of Pakistan and others” (PLD 2018 SC 788).

The counsel contended that the repealed provision was amended in order to give effect to the above law enunciated by the august Supreme Court. He further contended that it is not enough to merely acknowledge the right of overseas Pakistanis to vote in the elections held in Pakistan.

The IHC bench noted that the august Supreme Court has unequivocally held that the overseas Pakistanis have been conferred the right to vote as per the interpretation of Article 17 of the Constitution of the Islamic Republic of Pakistan, 1973.

It added, “The right to vote has been acknowledged through the amended section 94 of the Act of 2017. Both the judgments have been carefully perused. The august Supreme Court, after declaring that overseas Pakistanis are entitled to exercise the right of vote, has directed that pilot projects be undertaken so as to ascertain the “technical efficacy, secrecy, security and financial feasibility” of such voting. This direction was given to the Election Commission of Pakistan and the latter was required to submit its report to the government, which was directed to lay it before both the Houses of Parliament within the time specified by the apex court.”

“The repealed provision, as was inserted in section 94 of the Act of 2017 through the Elections (Amendment) Act, 2021, manifests that assistance of the National Database and Registration Authority or any other authority or agency was to be sought to enable overseas Pakistanis to vote in the prescribed manner subject to secrecy and security,” said the IHC Chief Justice.

He continued that the said insertion appears to have been made pursuant to the judgment of the august Supreme Court. He added that however, the provision as inserted through the Elections (Amendment) Act, 2022, reproduced above, also appears to be in consonance with the judgments of the august Supreme Court except that assistance by the National Database and Registration Authority has been omitted. Nonetheless, this omission does not prevent the Election Commission of Pakistan from seeking assistance of the Authority nor any other authority or agency, maintained Justice Athar.

At this, the petitioner’s counsel stated that the amended provision is an attempt to deprive the overseas Pakistanis from exercising the right to vote in the general elections.

However, the court said that it is satisfied that no case is made out to strike down the amended section 94 of the Act of 2017 and dismissed the petition

In their petition, the petitioners said that the main grievance was the amendment in Section 94 in the Elections (Amendment) Act, 2022. They adopted the stance that despite the fact that the law mandated the ECP to take some decisive acts to enable overseas Pakistanis to exercise their right to vote, no action in this regard had been taken by the respondent.

They said that the former PTI government had made an amendment in sub-section (1) of Section 94 of the Elections Act, 2017 and the present regime, which was vociferously opposing the fundamental right of vote of overseas Pakistanis at all levels, also moved an amendment in Section 94.

The petitioners contended that new amendment has reversed not only the enactment made to enforce the fundamental rights of the petitioners but has also set aside/reversed the judgment of the Supreme Court of Pakistan.

They argued that under Section 94 of the Elections Act, 2017, the ECP is legally bound to devise a mechanism to enforce the fundamental right of vote of overseas Pakistanis, which had been virtually taken away under the guise of the said amendment act.

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