The Supreme Court on Tuesday rejected a request filed by the Pakistan Tehreek-i-Insaf (PTI) to become a party to the pending case seeking directions for making swift arrangements to grant overseas Pakistanis the right to vote before the upcoming general elections.
Giving PTI the option to file a separate application on the matter if it so desires, a three-judge bench headed by Chief Justice Mian Saqib Nisar observed that it had to be examined what role PTI played in the National Assembly regarding the cause of giving voting rights to overseas Pakistanis.
The court is seized with petitions moved by a group of citizens — on behalf of Solicitor Mohammad Dawood Ghazanvi, Farhat Javed and others — 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 informed the court that a clause in the Elections Act 2017 passed in October asks the Election Commission of Pakistan (ECP) to test the feasibility of voting by overseas Pakistanis in by-elections.
Clause 94 of the Act reads: "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 above clause, which apparently stands in contradiction to Supreme Court's 2013 judgement — which said elections could not be termed free and fair unless expats were allowed to vote — 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 give the largest donation to PTI among all parties, 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 observed 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.
'Ensure free and fair elections'
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 maintained.
At least eight million Pakistanis live abroad.
In response to the bench's question whether overseas citizens of India can 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 Supreme Court's job to give the right to vote [to overseas Pakistanis]?" 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 wants.
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 has not been prepared as 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.
Failure of implementation
In 2013, the then chief justice Iftikhar Chaudhry had ruled that no legislation was required to give voting rights to overseas Pakistanis and went on to say that elections could not be termed free and fair unless expats were allowed to vote. He had ordered the ECP to take concrete steps to enable participation of overseas Pakistanis in the polls.
However, ECP was unable to set up proper infrastructure to enable overseas Pakistanis to cast their votes in the 2013 general election.
In November 2015, the ECP told a parliamentary committee that overseas Pakistanis will not be able to vote in the 2018 general elections.
A day before the petitions were accepted, the ECP on Thursday had submitted a report to the National Assembly, admitting that the trial methods used by the body for overseas voting did not prove to be effective. ECP said it had experimented using postal ballots and televoting in London, Glasgow, Manchester, Bradford, Dubai, Riyadh and New York.