PESHAWAR: The Peshawar High Court has ruled that there is no provision in the Representation of Peoples Act that the election staff would compel people to come to the polling station and cast their vote.

A division bench comprising Chief Justice Mazhar Alam Miankhel and Justice Qaiser Rasheed has observed: “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.”

Setting aside a judgment of the Election Commission of Pakistan (ECP) of June 2, 2015 of declaring by-elections held on May 7 in a Lower Dir provincial assembly constituency as void due to disenfranchisement of women voters, the bench in its detailed judgment ruled that “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.”

“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 observed.

The bench had on March 10 pronounced its short order of allowing a writ petition filed by a Jamaat-i-Islami candidate Aizazul Mulk and directed the ECP to issue notification for declaring him as returned candidate (MPA) from the PK-75 constituency of Lower Dir.

The court observed that the ECP under Section 103 AA of Representation of Peoples Act (RPA) could declare the election of a constituency as void and could also ask for re-poll in some of the polling stations, but in the present case, the said powers had been exercised on the basis of hearsay 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.

“Thus only on the basis of presumption, re-poll cannot be ordered, when otherwise it appears that the election was conducted in the constituency in a fair and transparent manner.”

In the 17-page detailed No provision in law to compel people to cast vote, rules PHC judgment, after discussing the arguments of different parties in the case, the bench ruled: “From the above, it is evident that all the arrangements were made by the Election Commission of Pakistan on the day of election for casting votes by the female voters by providing proper staff and place.”

“If this is the situation, the question would arise as to whether there is any provision in the RPA that the election staff would at all cost compel a voter, whether male or female, to come to the polling station and cast his/her vote. The answer would be No,” the bench observed.

According to the available record, the total number of male registered voters in the constituency was 86,926 of which only 38,590 voters had cast their votes and 48,336 did not turn up to cast their votes. “Can it be said that such a large number of voters were restrained or compelled by someone not to cast their votes.”

The bench observed: “Undoubtedly, not a single female had cast her vote but the law of the land does not provide any such compulsion and this alone would not be sufficient to annul the entire election as void, when by doing so, it would tantamount to the disenfranchisement of 38,590 voters who had already exercised their right of franchise.”

The court maintained: “We fully agree that it is not good practice and we are also not happy with this situation, but in the absence of any such law/penal provision, we do not think that the entire election can be annulled and declared void when there is not a single instance before us that a female went to cast her vote and she was stopped by someone. Besides, the machinery of election commission remained present there throughout the elections day.”

Published in Dawn, March 13th, 2016