Waseem Ahmad Shah
The issue of disenfranchisement of women once again surfaced during the by-elections in several constituencies on Feb 25. According to media reports, women were barred from voting in some areas of Mardan and Mianwali through agreements reached on local level between representatives of different political groups. The Free and Fair Election Network (Fafen) in its initial report stated that its observers had reported incidents of bar on women voting in NA-9 (Mardan) and PP-44 (Mianwali II) constituencies.
It also called upon the Election Commission to withhold results in the constituencies where women were barred from voting. This issue often comes to limelight in every general and by-elections in different constituencies especially that of Khyber Pakhtunkhwa and Federally Administered Tribal Areas.
So far successive governments have not taken any steps for proper legislation to check such practices. Whether it is local or general elections the practice of holding jirgas and barring women from casting votes remains a regular phenomenon.
Presently, there is no specific provision in the Representation of People’s Act (RPA), 1976, dealing with the issue of disenfranchisement of women. There are few indirect provisions which could be used for tackling this matter. Under Section 78 (2) of the RPA it amounts to corrupt practices if a person is found guilty of exercising undue influence.
Similarly, Section 81 (1) provides that a person is guilty of undue influence if he induces or compels any person to vote or refrain from voting. The RPA states that any person guilty of corrupt practice shall be punishable with imprisonment for a term which may extend up to three years or with fine or both.
In 2004 the Peshawar High Court pronounced that the practice of barring women from voting was unconstitutional. The court in four identical petitions had declared that barring women from political participation was against the fundamental rights, illegal and criminal. The petitions pertained to disenfranchisement of women from the local government elections in different districts, especially Swabi. Though the high court had dismissed the four petitions on March 17, 2004, on constitutional technicalities regarding its jurisdiction, it had clearly pronounced the practice as unconstitutional. The petitions were filed by Ms Bakht Zarina and others in various union councils during local government elections of 2001.
The high court’s bench comprising Justice Shahjehan Khan and Justice Ejaz Afzal had ruled that every citizen who was registered as a voter regardless of gender has a right to exercise their vote. The court had observed that all such means and devices were repugnant to fundamental rights enshrined in the Constitution, void, illegal and even criminal. A former attorney general for Pakistan Qazi Mohammad Jamil had represented the petitioners in those cases.
“There was no cavil with the preposition that every citizen of the country has a right to form or be a member of political party as enshrined in Article 17(2) of the Constitution, which included the right to contest and participate in election. There is also no cavil with the preposition that every citizen who is registered as a voter regardless altogether of gender has right to exercise his or her vote,” the bench had observed.
The court had ruled: “There is also no cavil with the proposition that this right being inherent in every registered voter can be exercised by him or her alone and thus cannot be forgone and forsaken by an agreement entered into by any person how high-so-ever he may be, therefore, no means or devices including threats of dire consequences or agreements amongst the candidates for election to an office can curb, curtail or fetter it.”
It had ruled that employment of such means by any person irrespective of his status and stature in the society would be illegal and punishable under the law.
A Berlin-based organisation, Democracy Reporting International (DRI), has last year compiled a report “No Voice: the exclusion of women from voting” in which the issue was discussed and several recommendations were made for checking it.
The DRI proposed that the law could explicitly require the ECP to annul polling station and entire constituency results where there was evidence that attempts had been made to dissuade women from participating. It recommends that the law could explicitly provide for tribunals to disqualify a returned candidate if there is evidence that the candidate or their election agent or any other person with their connivance participated in preventing, or attempted to prevent women from voting.
The organisation further suggests that the law could state that where female turnout is below a certain percentage, election results will be annulled. Similarly, it is added that the provinces could review their legislative frameworks for local government elections to consider incorporating similar measures in their respective drafting and reform processes.
Legal experts believe that parliament should legislate on this women-specific issue. Moreover, the role of ECP and civil society groups is also important in creating awareness among people of those areas where women are normally barred from casting vote.