PESHAWAR: In a setback to the women’s rights groups, the Peshawar High Court on Thursday set aside a judgment of the Election Commission of Pakistan to cancel the by-elections in a Lower Dir provincial assembly constituency due to the disenfranchisement of women voters.

A bench consisting of Chief Justice Mazhar Alam Miankhel and Justice Qaiser Rasheed allowed a writ petition filed by a Jamaat-e-Islami candidate Aizazul Mulk and directed the ECP to issue notification for declaring the petitioner as returned candidate (MPA) from the said constituency, PK-75, Lower Dir.

The bench had reserved judgment on the petition on Feb 11 after hearing detailed arguments of both the sides and pronounced its short order on Thursday.

On June 2, 2015, the ECP had declared void the May 7 by-election in PK-95, Lower Dir, in which the petitioner had received the highest votes, 20,228. The ECP comprised of the chief election commissioner, Justice (r) Sardar Mohammad Raza Khan and its other four members named Justice (r) Muhammad Roshan Essani, Justice (r) Riaz Kiyani, Justice (r) Shahzad Akbar Khan and Justice (r) Fazalur Rehman.

Orders notification of JI candidate as MPA from Lower Dir

Later on June 5, it had issued a notification and announced that fresh by-election would be held on July 12.

“The casting of vote by females is a right of females and males cannot enter into a one-sided agreement, having influence over the females. This is certainly an undue influence. We do not subscribe, in principle, to any agreement by males regarding exercise of right of vote by the females,” the ECP had observed in its judgment.

After the present petition was filed, the high court had suspended the notification last year of the holding of fresh by-election in the constituency. The said seat had fallen vacant after then MPA and JI chief Sirajul Haq became a senator.

The petitioner has claimed that the concerned area was very sensitive and situated near Pak-Afghan border, where traditionally women did not turn up to cast vote.

Ghulam Mohiuddin Malik and Amir Jawed, lawyers for the petitioner, had contended before the bench that the ECP had overstepped its jurisdiction by giving the impugned judgment.

They had argued that under Article 225 of the Constitution, no election should be called in question except by an election petition before an election tribunal.

Mr. Malik had said after the by-election held on May 7, some women had filed a petition with the high court alleging that the agreement had taken place between elders of the area and candidates to bar women from casting votes.

He however said the high court had dismissed that petition.

The lawyer had said the CEC had taken a suo moto notice of the allegations and asked different parties to explain their positions.

He said some activists including Farzana Bari, Bushra Gohar, Shad Begum and Nusrat Begum had recorded statements with the ECP claiming women were stopped from casting votes in the by-election though the former lived in Islamabad and Peshawar and were not voters in the said constituency.

The lawyers had claimed no candidate had challenged the by-election on the ground of disenfranchisement of women and that even the relevant returning officer, deputy commissioner and other officials denied any such agreement had taken place.

Mr. Amir Jawed had said that in all polling stations meant for women, the ECP staff members were deputed but voters didn’t turn up to cast vote of their own free will due to cultural and geographic circumstances.

He contended that merely on basis of presumptions, an election could not be declared void.

Lawyer Shumail Butt had represented ECP and asked how 54,000 women had simultaneously decided not to cast vote when no agreement had taken place in the area. He had pointed out that it was the decades old practice in the area that male members of families made agreements to bar women from voting.

The lawyer said the high court couldn’t interfere in the action on the ECP order and that the petition was not maintainable.

While the present petition was pending, the high court had in Oct last year declined to implead the National Commission on the Status of Women and several social activists as respondents in the petition.

Among those activists were former MNA Bushra Gohar, Rukhshanda Naz, Tahira Abdullah and Aurat Foundation representative Shabeena Ayaz.

Published in Dawn, March 11th, 2016