By: Waseem Ahmad Shah
The issue of disenfranchisement of women in parts of Khyber Pakhtunkhwa is a recurring phenomenon and continues to persist despite much hue and cry by civil society groups for giving them the right to vote.
A judgment of the Peshawar High Court delivered on March 10 ended the jubilation of different organisations and individuals that had started after the Election Commission of Pakistan (ECP) on June 2, 2015 declared a by-election void in the provincial assembly constituency PK-75, Lower Dir, as no female voter had cast vote there.
The high court bench comprising Chief Justice Mazhar Alam Miankhel and Justice Qaiser Rasheed overturned that judgment and allowed a writ petition filed by a candidate of Jamaat-i-Islami, Aizazul Mulk, who had challenged the ECP’s order and a subsequent notification issued by it for holding by-elections in the constituency. The petitioner had obtained the highest votes during by-elections held on May 7, 2015.
The bench has ruled: “Nothing is available on file to show that the female voters were restrained either by the elders of the locality or male voters of the constituency.” It further observed: “No person including any voters of the area made any complaint either on the day of election or thereafter to the election staff or the Election Commission of Pakistan.”
The court pronounced that there was no provision in the Representation of Peoples Act that the election staff would at all cost compel a voter to come to the polling station and cast his/ her vote. “This is the choice of a voter whether to cast his/her vote and no punitive law is in the field to compel such a voter to cast his/her vote by all means.”
The court observed that ECP under Section 103 AA of Representation of Peoples Act (ROPA) could declare the election of a constituency void and could also ask for re-poll in some of the polling stations, but in the present case such powers had been exercised on a hearsay evidence without any positive evidence to the effect that either the polling arrangements were not made in the constituency or the contesting candidates/elders of the locality barred the females from casting their votes.
The most important development in such controversies took place in 2000 when the military government of retired General Pervez Musharraf introduced reserved seats for women in the local governments. Initially, six seats were reserved for women in a 21-member union council across the country.
When the first LG elections were held under that scheme by the end of 2000 and in 2001 in different districts of the province the conservative forces openly came out to stop women from contesting on those reserved seats and also from casting their votes during polling. Written agreements were signed by elders and representatives of different political parties especially in Dir districts.
It was on May 29 and 30, 2001 when baton-wielding workers of religious groups and political parties were roaming around the premises of district courts in Lower Dir Lower to stop any female candidate from filing her nomination papers. Due to such practices majority of reserved seats for women remained vacant there.
The Tehreek Nifaz-i-Shariah-i-Muhammadi had gone a step further and had convened a meeting on May 26, 2001 and directed people not to offer funeral prayer of those females who would participate in the LG polls. It was also announced to start social boycott of all such families whose female members would participate in the elections.
Several female voters had then moved the high court in 2001. Those petitioners had alleged that they were stopped from voting through different coercive measures in Swabi district, including agreements reached between the contesting candidates. The petitioners had requested the high court to declare polls in those union councils as null and void.
A two-member bench of the court had dismissed those petitions on March 17, 2004 on technical grounds related to jurisdiction of the court, but it clearly pronounced that the practice of barring women from voting was unconstitutional.
“As a matter of fact, employment of such means by any person irrespective of his status and stature in the society will not only be void and illegal, but criminal as well which can well be punished under the law. We strongly deprecate all such means, devices, threats and even agreements aimed at restraining the female registered voters from participating in the electoral process,” the bench had ruled.
Almost a decade later on Aug 22, 2013 then PHC chief justice Dost Mohammad Khan (now a judge of the Supreme Court) took suo motu notice of the issue when it was highlighted by different TV channels regarding barring of women from casting votes in different polling stations in NA-5 Nowshera and NA-27 Lakki Marwat during by-elections.
The court had then directed the ECP not to issue gazette notification of the successful candidates. The initial reports showed that there was zero per cent result in at least 54 of the female polling stations whereas in many other stations the percentage was nominal.
On Aug 26, 2013, a two-member bench asked the ECP to conduct re-polling in several women’s polling stations in the said two constituencies. The court had left it to the ECP to decide at how many polling stations re-polling should be held.
The bench ruled that barring women from casting vote was a detestable act which could not be approved by court.
However, to the utter disappointment of civil society groups a three-member bench of the Supreme Court had set aside that judgment of the high court on Sept 17, 2013. While the bench did not touch the factual points involved in the case, it touched the suo motu powers exercised by the PHC’s chief justice and placed certain restrictions on it.
Activists dealing with such issues believe that with the passage of time the forces involved in disenfranchisement of women had changed their modus operandi. They said that instead of written agreements they had now been trying not to leave behind any evidence.
It is evident from these developments that to curb such practices changes are required to be made in the relevant laws, including the Representation of Peoples Act, 1976, to introduce punishment for those who deliberately or indirectly restrain the female voters from polling their votes.