Islamabad High Court Chief Justice Athar Minallah on Wednesday said that none of the amendments made to the Elections Act, 2017 by the incumbent coalition government deprived overseas Pakistanis of the right to vote.
He made the observation while hearing a petition filed against the passage of the Elections (Amendment) Bill, 2022 which disallows overseas Pakistanis from voting electronically. The petition, a copy of which is available with Dawn.com, was filed by solicitor Dawood Ghazanavi and dual national Atif Iqbal Khan.
The federation of Pakistan through the secretary of the Ministry of Law, Justice and Parliamentary Affairs, and the Election Commission of Pakistan (ECP) have been made respondents in the case.
On May 26, the National Assembly passed two crucial bills — Elections (Amendment) Bill 2022 and National Accountability (Second Amendment) Bill — which reversed the election laws by the previous Pakistan Tehreek-i-Insaf (PTI) government regarding the use of electronic voting machines (EVMs) and i-voting for overseas Pakistanis and the clipping the vast powers of the National Accountability Bureau (NAB). The bills were passed by the Senate a day later.
The petitioners said they had approached the Supreme Court for the fundamental right of vote for overseas Pakistanis after which "an authoritative judgement was passed".
In 2018, the SC had directed the ECP to ensure that overseas Pakistanis exercise their right to vote in by-polls as a pilot project. A three-judge bench headed by former chief justice Mian Saqib Nisar had passed the order while hearing over a dozen petitions seeking directions for the ECP to make arrangements to enable overseas Pakistanis to exercise their right to vote.
In the petition filed in the IHC, the petitioners said that the main grievance was the amendment in Section 94 in the Elections (Amendment) Act, 2022.
"Notwithstanding 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," it said.
It also noted that the former PTI government had made an amendment in sub-section (1) of Section 94 of the Elections Act, 2017. It added that 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.
"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 judgement of the Honourable Supreme Court of Pakistan," the petition said.
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, it added.
The petitioners said that the impugned amendment was not only violative of their fundamental rights but was also inconsistent with the statute as well as the judgement of the apex court which was given effect through an act of parliament by the previous regime.
The petition went on to say that the previous government ensured the enforcement of the fundamental right to vote for overseas Pakistanis through legislative enactment but the same had been taken away by the present regime "with ulterior motives".
It noted that the government's "mala fide intent" could be gauged from how the Elections (Amendment) Act, 2022 was passed "within a day without any debate or discussion in parliament".
It termed Section 3 of the Elections (Amendment) Act, 2022 unconstitutional, illegal and in violation of Article 17 of the Constitution. It urged the court to strike down the amendment and to suspend operation in the meanwhile.
During today's hearing, lawyer Arif Chaudhry appeared before the court today to represent Ghazanavi.
During the hearing, Justice Minallah asked the petitioner's counsel about how many Pakistanis lived abroad. Chaudhry replied that nine million Pakistanis were based outside of the country.
The IHC CJ said that the amendments made by the previous government did not appear to be in line with the Supreme Court's verdict. However, he observed that the most recent amendment does not deprive overseas Pakistanis of the right to vote.
"None of the amendments take away the right of overseas Pakistanis to vote," he said.
The court sought further arguments on the maintainability of the petition and adjourned the hearing till June 3 (Friday).
Parliament passes bill to scrap EVMs
Last week, the National Assembly passed a crucial bill seeking to reverse the controversial changes made in the election laws by the previous PTI government regarding the use of electronic voting machines (EVMs) and i-voting for overseas Pakistanis. The bill was also subsequently passed by the Senate.
Under the amendment to Section 94 of the Election Act of 2017, the ECP 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 15 days from the commencement of a session of a house after the receipt of the report, lay the same before both houses of parliament.
Under the amendment to Section 103 of the Election Act, the ECP may conduct pilot projects to utilise EVMs and the biometric verification system in by-elections.
The PTI, which has passed bulldozed legislation allowing the use of EVMs and granting voting rights to overseas Pakistanis during a joint session of parliament in November, has announced that it will challenge the changes in court.