ISLAMABAD: The Supreme Court has accepted for hearing a petition moved by a civil society activist challenging the validity of May 7, 2015 by-elections of PK-95 Lower Dir II (Khyber Pakhtun­khwa) which turned out to be a men-only show and sparked a nationwide controversy.

A three-judge Supreme Court bench headed by Justice Mian Saqib Nisar while admitting the petition for hearing also issued notices to respondents incl­u­d­ing the Election Com­mission of Pakistan (ECP).

Rights activists Asma Jahangir has filed the petition on behalf of Tahira Abdullah, Bushra Gohar, Advocate Rakshanda Naz and former chairman of the National Commission on the Status of Women Khawar Mumtaz by assailing the March 10, 2016 Peshawar High Court (PHC) judgment of setting aside the June 2, 2015 ECP decision of declaring the by-election as void for disenfranchisement of women.

In a unanimous decision, the ECP had decided to organise re-polling by not notifying the returned candidate because no woman was allowed to cast her vote.

The petition explained that the total number of voters recorded in the constituency during the by-elections were 140,743 of which 53,817 were registered women voters which turned out to be around 39 per cent of total votes. During the elections 85 polling stations were specifically set up by the commission to facilitate women to use their right to franchise.

But soon after the election process commenced, media highlighted the climate of fear which prevented even a single woman from casting her vote in the by-elections. Not a single woman polling agent of any political party was present inside a polling station that day.

The media reports were convincing enough to prompt the Senate to pass a resolution on May 18, 2015 condemning undemocratic practices of barring women from voting.

Later, the ECP took notice of the reports and under Article 218 (3) of the Constitution and Section 103AA of the Repre­sen­tation of People Act 1976, (RoPA), declared the by-elections as void for depriving women voters of their right to vote.

The commission’s decision however was challenged by Aizazul Malik before the PHC, questioning the legality and propriety of the ECP’s decision. During the course of hearing, the high court even dismissed petitions moved by the present appellants and later passed a judgement on March 10, 2016, holding the decision of the commission as an order passed in excess of lawful authority and jurisdiction.

The petition regretted the trend of keeping women away from the ballot which was evident from several reported cases.

Articles 3, 4, 16, 17 and 25 of the Constitution, the petition highlighted, provided for equality before law and empowed the state to ensure that no person would be prevented or be hindered in doing what was not prohibited by law.

It is a settled law that the high court can only set aside the ECP’s order on the ground of it being coram non-judice, without jurisdiction or mala fide, the petition highlighted. As such, the PHC should not have assumed jurisdiction under Article 199 of the Constitution to set aside the June 2, 2015 ECP order.

The ECP was correct, the petition emphasised, in concluding that disenfranchisement of 54,000 women in the Lower Dir elections depicted unjust and unfair practices prior to elections. The high court cannot rep­lace the commission’s opinion with its own through its power of judicial review, the petition said.

The female voters of Lower Dir constituted 39 per cent of the constituency’s voter base, the petition said. Thus the high court cannot assume that all women chose not to cast their votes since in subsequent local government elections held on May 30, 2015, only 382 women came to vote in a similar situation of law and order as well as geographical placement of the constituency.

Published in Dawn, June 12th, 2016