ISLAMABAD: Pakistan Tehreek-i-Insaf (PTI) Chairman Imran Khan on Monday challenged the recent amendments to the Elections Act 2017 before the Supreme Court, seeking a direction for the Election Commission of Pakistan (ECP) to provide effective right to vote to overseas Pakistanis in the next general elections.

Moved through Advocate Uzair Karamat Bhandari on behalf of the PTI and its chairman, the petition also pleaded before the apex court that the ECP should be ordered to grant necessary approvals and funds to the National Database and Registration Authority (Nadra) for developing an i-voting system within a strict time frame so it could be used in the next general elections.

The petition underscored the significance of the plea that questions of public importance had been raised with reference to the enforcement of fundamental rights conferred under articles 17 (right to form association) and 25 (equality of citizens) of the Constitution, and referred to relevant verdicts from the past.

The secretaries of parliamentary affairs, law and justice, overseas Pakistanis and human resource development and foreign affairs, the ECP and Nadra have been named as respondents in the petition.

Wants order for ECP to grant approvals, funds to Nadra for developing i-voting system for next general elections

The former premier has challenged the amendments to Section 94(1) of the Elections Act 2017, which was notified on June 22 after having deemed assent of President Dr Arif Alvi. He believes the amendments violate the fundamental rights of over 10 million overseas Pakistanis to vote, as enshrined in the Constitution and recognised by different judgements of the Supreme Court.

Through the amendments, the petitioner argued, the coalition government had reversed all efforts made to ensure fundamental right to vote for overseas Pakistanis and condones, rather sanctifies, the ECP’s alleged inaction in fulfilling the constitutional mandate and directions of the apex court [in an] attempt to unfairly prejudice the petitioners who enjoy wide support amongst the expatriates.

Given the attitude of the ECP and the federal government, the petition prayed, the apex court grant continuous mandamus (order to perform statutory duty) in supervising the process of putting in place a system for ensuring that overseas Pakistanis were able to cast their votes in all future elections from their place of residence.

“Their fundamental right cannot be left to the whims and caprice of other institutions whose only interest seems to be in obstructing and denying the exercise of this right,” the petition regretted.

It also recalled how the highest constitutional functionary of the state — the president — twice felt constrained to refuse to assent to this amendment and recorded detailed reasons. Thus, the stand taken by the president should be accorded some weight since he is part of parliament as per Article 50 of the Constitution and his views to the vires of the proposed law must be a relevant factor.

Moreover, the Universal Declaration of Human Rights, to which Pakistan is a signatory, grants people with certain basic fundamental rights, including the right to be governed through their chosen representatives, irrespective of their origin or status. Thus, the amendments to the Elections Act were a violation of the universal declaration.

The petitioner regretted that despite having itself noted several issues in the overseas voting rules in the ECP report, the commission has failed to make necessary amendments to the rules. The state cannot wait for a system to be perfect before allowing fundamental rights to citizens, and if there was a shortfall or defects in the system then efforts should be made to improve it in accordance with the socio-economic and political conditions of the country rather than discarding it entirely.

Referring to the arguments regarding secrecy of ballots that were often cited to justify depriving overseas Pakistanis of the right to vote, as required by Article 226 of the Constitution, the petition emphasized that such secrecy was not an inviolable command and that the state was obligated to ensure such secrecy. Thus, this cannot be a reason to refuse the right to vote to overseas Pakistanis.

Moreover, the technical difficulties being highlighted in providing this right were far from being insurmountable, it concluded.

Published in Dawn, July 5th, 2022

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