WITH the general elections just round the corner, the practice of disenfranchisement of women in different parts of Pakistan especially Khyber Pakhtunkhwa and Federally Administered Tribal Areas (Fata) has been in focus. Unlike past practice, positive news are coming in from some of the districts and areas that for the first time women would be allowed to cast votes, but observers are apprehensive that in several areas especially those infested with militancy women voters might remain disenfranchised.
In past, especially in the general elections of 2002 and 2008 and during the local governments elections in 2001 and 2005, on local level in different areas agreements had taken place between the contesting candidates and political parties not to allow women voting in their respective areas.
According to media reports one positive sign emerging this time is that so far none of the political parties are found involved in turning to such practices and in fact in certain areas conservative parties like Jamaat-i-Islami Pakistan and Jamiat Ulema-i-Islam-F have been campaigning for getting support of women voters.
Still there are several such areas where in past no agreements had taken place but women did not turn up to vote as there was silent understanding in those areas on this issue. Due to precarious law and order situation there is apprehension among observers that voter turnout might be low in sensitive areas, which would also affect women turnout.Out of the total 86.189 million registered voters in the country 37.597 million (43.6 per cent) are female voters. Similarly, in Khyber Pakhtunkhwa 5.257 million (42.8 per cent) of the total 12.266 million voters are women. In Fata 0.596 million (34.2 per cent) of the total 1.738 million voters are females.
In the election code of conduct (ECC) issued by the Election Commission of Pakistan the political parties, contesting candidates and their supporters are barred from making any agreement regarding disenfranchisement of women. Section 20 of the ECC states: “The political parties, contesting candidates and their supporters or other persons shall not encourage or enter into formal or informal agreement/arrangement/understanding debarring women from becoming candidate for an election or exercising their right of vote in an election. The political parties shall encourage the women to participate in election process.”
However, violation of the election code is not a penal offence. Civil society groups had proposed from time to time that such acts should be made an offence so as to discourage such practices. Despite continuous highlighting of the issue by the media as well as civil society groups the successive governments failed to legislate on the issue.
The Representation of Peoples Act 1976 lacks any specific provision dealing with this phenomenon. There are a few indirect provisions from where it could be inferred that barring women from casting vote is illegal. Under section 78 (2) of the RPA it amounts to corrupt practices if a person is found guilty of exercising undue influence.
The term “undue influence” has been explained in section 81 of the RPA. Section 81 (1) provides that a person is guilty of undue influence if he in order to induce or compel any person to vote or refrain from voting at an election, directly or indirectly, makes or threatens to make use of force, violence or restraint; inflicts or threaten to inflict any injury, damage, harm or loss; etc.
The said section further provides that a person is guilty of undue influence if he by abduction, duress or any fraudulent device or contrivance compels, induces or prevails upon any elector to vote or refrain from voting.
The RPA provides penalty for corrupt practices which states that any person guilty of corrupt practice shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees, or both.
The Peshawar High Court had in clear terms pronounced in 2004 that the practice of disenfranchisement of women was unconstitutional. The high court in several identical writ petitions pertaining to barring of women from voting in the local government elections in different districts, had declared that barring of women from political participation was against the fundamental rights, void, illegal and criminal.
Although, the high court had dismissed the said petitions on March 17, 2004, on technical grounds related to its jurisdiction, but it had clearly pronounced the said practice as unconstitutional. The said petitions were filed by some women voters named Ms Bukht Zarina, Ms Jamala and others.
The high court bench comprising Justice Shahjehan Khan Yousafzai and Justice Ejaz Afzal had ruled that every citizen who is registered as a voter regardless altogether of gender has a right to exercise his or her vote. The court had observed that all such means and devices were repugnant to the fundamental rights enshrined in the Constitution, void, illegal and even criminal. It had ruled that employment of such means by any person irrespective of his status and stature in the society would not only be void and illegal but criminal as well which could well be punished under the law.
The bench had observed: “There was no cavil with the preposition that every citizen of the country has a right to form or be a member of political party as enshrined in Article 17(2) of the Constitution, which included the right to contest and participate in election. There is also no cavil with the preposition that every citizen who is registered as a voter regardless altogether of gender has indefeasible right to exercise his or her vote.”
The court had ruled: “There is also no cavil with the proposition that this right being inherent in every registered voter can be exercised by him or her alone and thus cannot be forgone and forsaken by an agreement entered into by any person how high-so-ever he may be, therefore, no means or devices including threats of dire consequences or agreements amongst the candidates for election to an office can curb, curtail or fetter it.”
Legal experts believe that the ECP has to keep a close eye on all such polling stations where in past such practices had taken place.