ISLAMABAD: The Pakistan Tehreek-e-Insaf (PTI) prayed before the Supreme Court to declare the impugned amendment in the Elections Act, 2017, unconstitutional, discriminatory, and violative of fundamental rights.
PTI Chairman Imran Khan and General Secretary Asad Umar, on Monday, filed a constitutional petition under Article 184 (3) of the Constitution, challenging the amendment to Section 94(1) of the Elections Act, 2017 through Elections (Amendment) Act, 2022.
It further asked the SC to direct the Election Commission of Pakistan (ECP) and all the relevant authorities to take necessary steps to give effect to the right of overseas Pakistanis to vote in all future elections, especially the upcoming general elections from their country of residence.
“To direct the ECP to grant the necessary approvals and funds to NADRA for developing the new I-Voting System so as to be in place in time for use in the upcoming/ next general elections.”
The impugned amendment violates the fundamental right to vote of over 10 million overseas Pakistanis as enshrined in the constitution and as recognised by various judgments of the apex court.
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According to various reports – formulated in light of the General Elections 2018 – overseas voters can potentially change outcomes in up to 186 constituencies in the National Assembly and the same is true for a large number of Provincial Assembly seats, too.
The impugned amendment essentially reverses all efforts made to this day to give effect to the fundamental rights to the vote of overseas Pakistanis. It also prejudices the petitioners, who enjoy wide support among overseas Pakistan.
It states that a right guaranteed by the Constitution cannot be taken away by the law, as being beyond the reach of the legislature. It is not only technically inartistic but also a fraud on the citizens to say that a right is fundamental, but that it may be taken away by the law.
The technical difficulties cannot be made a reason for refusing to provide fundamental rights to the citizens. The problems have not been resolved are due entirely to the ECP’s own “slackness and inaction”. The impugned amendment seeks to place a premium on the ECP’s failure to discharge its constitutional duties.
The amendment is also unconstitutional as it creates a significant hindrance in conducting election justly, and fairly, as mandated by the constitution. An election from which a significant number of voters are deliberately excluded cannot, self-evidently, constitute just and fair election as mandated by Article 218 (3) of the constitution.
The impugned amendment also violates Article 25 of the constitution, and as a result of it the State in elections for the foreseeable future, continue to grant the right to vote to those citizens who reside in Pakistan, while deliberately denying overseas Pakistanis the same right, thus discriminating against them and violating the right granted by the Article 25.
The requirement of having a valid Machine Readable Passport prescribed by the Overseas Voting Rules is not a requirement under any law and is an unnecessary burden. However, as a result of such a requirement in the Rules, approximately 15 per cent of all overseas voters are being denied their right to vote.
The registration period for the I-Voting System prescribed under the Rules was very short, thus resulting in many overseas voters not being able to register themselves as voters. The Overseas Voting Rules provide no mechanism for a call centre or a complaint cell, so that many overseas voters with queries regarding the procedure were not able to have their queries addressed.
Copyright Business Recorder, 2022
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