The Supreme Court of Pakistan is set to decide a crucial issue related to disenfranchising women during Aug 22 by-elections in two National Assembly constituencies in Nowshera and Lakki Marwat districts. In a significant judgment on Aug 26, the Peshawar High Court had asked the Election Commission of Pakistan (ECP) to conduct re-polling in several women’s polling stations in NA-5 Nowshera and NA-27 Lakki Marwat.

The judgment has now been under challenge before the apex court as the candidates of Pakistan Tehreek-i-Insaf, leading in those constituencies, have been requesting the Supreme Court to set aside the judgment and direct the ECP to notify the results.

A two-member bench of the Supreme Court comprising Justice Khilji Arif Hussain and Justice Ijaz Ahmad Chaudhry on Sept 3 took up for preliminary hearing the appeal filed against the judgment and issued notices to different respondents, including the personal staff officer (PSO) to the PHC Chief Justice Dost Mohammad Khan on whose report the chief justice had taken suo motu notice of the issue and then the impugned judgment was delivered. The court has now fixed Sept 10 for next hearing.

Advocate Athar Minallah represented PTI candidate for NA-5 Imran Khattak and contended that in general elections only a single female voter had cast vote in NA-32 constituency of Upper Dir, but the high court had not taken notice of that.

Heading a two-member bench on Aug 26, the high court chief justice had observed that it was regrettable that in a country where a woman twice became prime minister, female voters had been deprived of their right of adult franchise. The bench ruled that barring women from casting vote was a detestable act which could not be approved by court.

It is not acceptable that a vast majority of voters are deprived of their fundamental right of electing persons of their choice,

the bench had ruled.

The returning officers of the two constituencies had informed the court that in around 54 polling stations in the two constituencies women had not turned up to cast votes.

Barring women from casting votes through different tactics is a recurring phenomenon.

Sometime written agreements took place between the contesting candidates and elders of an areas, whereas on other occasions disenfranchisement of women took place through verbal agreements. In several areas even without agreements, it is an understood reality that women would not turn up to cast votes.

During the general elections it was reported from eight districts of Khyber Pakhtunkhwa that female voting did not take place in certain areas. Because of the same background the PHC judgment received appreciation, especially from civil society organisations.

“There is a long struggle behind this judgment of the high court and we have been demanding since long that re-polling shall be held in constituencies where females are barred from casting vote,” said Shabina Ayaz, the resident director of Aurat Foundation. She said that during general elections written agreements were signed in some of the areas by the candidates and leaders of different political parties, which was illegal.

In the past when seats were reserved for women in the local councils, including in the new devolution system during Pervez Musharraf regime in 2001, several religious groups had opposed it and even religious edicts were issued terming the move un-Islamic. The first local government elections were held in different phases in 2000 and 2001 and at that time the groups averse to women’s participation had not only tried to stop them from contesting polls, but also from voting.

Following those polls in 2001, four identical writ petitions were filed by Aurat Foundation on behalf of some females who claimed they were barred from voting. A bench of the high court comprising Justice Shahjehan Khan Yousafzai and Justice Ejaz Afzal had on March 17, 2004, dismissed those petitions on technical grounds, but clearly pronounced such acts as unconstitutional.

“We strongly deprecate all such means, devices, threats and even agreements aimed at restraining the female registered voters from participating in the electoral process,” the bench had ruled.

“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,” The bench had stated.

It took the high court almost nine years to decide the issue in clear terms through the recent judgment. One important thing discussed in the judgment was the recommendations of the high court, asking the ECP to prepare suggestions for the federal government for drastic changes in the Representation of Peoples Act 1976 so as to ensure maximum participation of female voters in the polls and to provide punishment for all those elements involved in barring females from exercising their fundamental right of casting vote and choosing their representative.

Legal experts believe that the Supreme Court judgment in this case would be of far-reaching consequences. In case, the judgment of the high court was set aside and the ECP directed to issue the official notification concerning the returned candidate, it would encourage the elements involved in such acts and would be a setback to the struggle carried out by civil society organisations in this regard.