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Wednesday, May 22, 2024

Question of overseas voting back in the supreme court of Pakistan

Dawood Ghazanavi |

Supreme Court of Pakistan has the longest history in discussing whether voting rights should be given to Overseas Pakistani, cases exist since the 1990’s. The issue first came to light in 1992 through the Yasmin case.

Finally in 2013, the Nasir Iqbal case, established overseas voting as fundamental right, and insisted upon the Federal Government to extend the facility of voting to overseas Pakistani’s in the election of the National Assembly as well as Local bodies.

It was determined that such a right cannot be denied on technical grounds, i.e. logistical arrangements that were needed outside the country for overseas Pakistanis to cast their votes.

In compliance with the Supreme Court order in May 2013, two days before 2013 General Elections, then President of Pakistan, Asif Ali Zardari, promulgated The Elections Law (Amendment) Ordinance 2013.

Read more: 2018 Elections will be pointless: without “major electoral reforms”

Death of 2013 Elections Law Ordinance

The ordinance died its natural constitutional death after 4 months, during which it was not placed in the Parliament to be made a permanent Act of Parliament. The Federal government ignored overseas voting facilities during the by-elections in 2014 and violated Supreme Court’s clear instructions.

In 2014, a petition was moved by petitioner named Dr. Farhat Siddiqui through his counsel Barrister Dawood Ghazanavi, myself, in the Islamabad high court to provide voting facilities to overseas Pakistani during KP Local Bodies Elections 2015.

In the Islamabad High Court, Justice Attar Minallah disposed off the petition, and converted it into a representation and referenced it to the Election Commission of Pakistan (ECP).

Non-compliance of ECP order in 2015

The Election Commission of Pakistan (ECP) in 2015 heard the reference while constituting bench under Chairman ECP, Justice Retired Sardar Raza khan.

The government was represented by secretary Establishment division and he assured all that a Bill has been tabled in the Senate of Pakistan and will be passed before KP Local Bodies Elections in 2015.

Federal ignored overseas voting facilities during by-elections in 2014 and violated SC clear instructions.

ECP passed its judgment and ordered that “as the legislative process has commenced in the Parliament, the commission is earnestly interested in the completion of the process at the most earliest, preferably before the Local bodies’ elections in KPK 2015. Nothing happened on this aforementioned Bill by Secretary Establishment. The Government of Pakistan clearly violated the Supreme Court order in both instances.

Due to noncompliance of ECP order in 2015, Chairman Welfare Society for Overseas Pakistani Rights (WSOPR), myself, along with other 35 overseas Pakistanis residing in 14 different countries, petitioned the Supreme Court of Pakistan, for directing the Federal government and ECP to implement Supreme Court judgment in true letter and spirit.

Read more: Is PML-N a threat to democracy?

Parliamentary Committee on Electoral Reform

During this period, in 2014 Speaker National Assembly constituted Parliamentary Committee on Electoral Reform for reforming electoral laws in Pakistan.

The Parliamentary committee constituted sub- committee for devising mechanism for overseas Voting, under the chairmanship of PTI stalwart Dr. Arif Alvi NA-MNA.

Read more: 1970 Election: The Last Credible Vote in Pakistan’s History?

The Committee met for 65 times but failed to devise any voting mechanism for overseas voting. The Draft Election Bill 2017 tabled on 21st December 2016, made no mention of the voting mechanism for overseas Pakistanis.

When asked, PTI blames the government for not reaching any consensus with other political parties on proposed voting mechanisms, and instead using delaying tactics in devising a voting mechanism for overseas Pakistani, before 2018 general elections. So that in effect if not passed soon, another ten years will pass, before the overseas Pakistanis get the right to vote in general elections, in 2023.

Suggested modification in electronic postal ballot voting mechanism

In 2016, a recommendation for voting mechanism was sent to the Chief Election Commission of Pakistan and I requested for a in-person meeting. On 20th December 2016, I met the ECP main body.

The Committee met for 65 times but failed to devise any voting mechanism for overseas voting.

A recommendation was made for a slight modification, in a one-way electronic postal ballot voting mechanism, that should be implemented, to make it workable during 2018 general elections.

In return, I received a letter of appreciation and two short booklets from the ECP dated 15th January 2017. The letter appreciated my efforts for this cause and request for assistance in future.

UNDP non-feasibility report on overseas voting

One of the booklets explained that UNDP has conducted a feasibility report on overseas voting and has shown reservations on conducting extra-territorial voting during 2018 General Elections.

It did not explain the recommendations that the UNDP gave to conduct voting in 2018 general elections. In fact, it did not even explain why the UNDP had anything to do with the matter concerning Pakistan. Do we need to ask UNDP about whether we should have democracy or elections in Pakistan?

Under Constitution of Pakistan, Pakistan is not obliged to obey the suggestion or recommendations of UNDP. The ECP letter in 2017, left us with no option but to approach SC again for implementation of its order.

The petitions pending in Supreme Court since 2015, were requested to be listed for early hearing and were heard by a three-member bench headed by Chief Justice Mian Saqib Nisar on 28th Feb 2017.

Read more: Pakistan’s Tragedy: From Rule of Ballot to Rule of Thana!

Another petition to Supreme Court on the matter

It was explained to the bench, that this case has the longest judicial history and has come to the Supreme Court for the third time since 1992.

It was also explained to the bench that the order of the Supreme Court has been violated for 4 years, while delaying tactics are been used, within that time, the petitioner has approached every forum of the Federal Government but with results.

It was also explained to them that under the constitution of Pakistan, we are not legally obliged to obey the suggestion or recommendations of UNDP.

Union of India resisted extraterritorial voting to its over 25 million non-resident Indians (NRI) for over 40 years.

The bench showed serious concern, as it is a matter of voting rights to over 65 lakhs overseas Pakistani holding NICOP cards. The bench noticed Attorney General of Pakistan, Chairman NADRA, and Chairman ECP to appear in court on next hearing and plus detailed report.

It was also explained during the hearing that according to a survey done by the Pakistan Institute of Legislative Development and Transparency (PILDAT), every National Assembly constituency in Pakistan has a potential impact on the votes of an average of 6-7 thousand overseas Pakistanis.

Indian experience of overseas voting

Union of India resisted extraterritorial voting to its over 25 million non-resident Indians (NRI) for over 40 years. Narinder Modi government stressed heavily on Indian Diaspora to invest in the Indian economy and in return promised them an extension of the franchise in elections in India.

In Indian Supreme Court, the petitioner for the extension of the franchise was filed by a Dubai-based Indian doctor, entrepreneur and philanthropist Shamsheer Vayalil.

He appealed in the Supreme Court that majority of south Indian are migrant workers in the gulf countries, and send remittance in billions but having no say in the shaping of the government policies. Finally, now the NRI Indian will be voting in 2017 North Indian General Elections.

Dawood Ghazanavi is a Barrister in Pakistan. The views expressed in this article are the author’s own and do not necessarily reflect Global Village Space’s editorial policy.