The parliament had passed the bill to grant overseas Pakistanis the right to vote in November 2021.
It is universally known that fundamental rights are not the benevolence of any legislature or authority. A human being is born with them. Fundamental right are sacred. They are given to persons regardless of gender, social standing, literacy, knowledge, caste, creed or ethnicity. The right to vote is a fundamental right that is granted to all citizens, including those living overseas.
In the landmark case, Yasmin Akhtar v. Election Commission of Pakistan (1994 SCMR 113/Constitutional Petition 26 of 1993, a five-member panel of the Supreme Court recognized the right of overseas Pakistani to vote in the general election, and ordered the Election Commissioner of Pakistan (ECP) to make all necessary arrangements to include their names in the electoral roll.
This was reiterated in two other judgments -- 2013 SCMR 1874 and PLD 2013 Supreme Court 413. The court held in the former that it is imperative to have overseas Pakistanis, without distinction, to vote in the elections for the national as well as provincial assemblies. It directed the ECP and the Ministry of Information to take necessary steps to ensure they are able to exercise their fundamental right to vote. In the latter case, the Supreme Court highlighted that even if an individual is a dual national, he can still exercise his right to vote as the constitutional bar on running for an election cannot be interpreted as a bar on the right to vote.
There can be no doubt that it is a settled principle of law that whenever the parliament passes a law in contradiction to fundamental rights of an individual or a group of individuals then the said legislation is liable to be struck down -- under the principles of Judicial Review.
Further, in another case, PLD 2018 Supreme Court 788, the Supreme Court declared that overseas Pakistanis have a right to vote as per article 17 of the constitution and directed the ECP and Nadra chief to complete the pilot projects in view of the election law and make sure that the process of i-voting was foolproof and flawless.
The questionable bill is an infringement of fundamental right recognized under article 17. There can be no doubt that it is a settled principle of law that whenever the parliament passes a law in contradiction to fundamental rights of an individual or a group of individuals then the said legislation is liable to be struck down -- under the principles of Judicial Review.
The argument presented -- that overseas Pakistanis are not cognizant of problems plagueing Pakistan -- is a weak one. The same can be said about many illiterate Pakistanis who cast vote in Pakistan every general election.
Stripping citizens of this right would be an unconstitutional step. Taking away the fundamental right of an individual cannot be allowed. If this unconstitutional step is not challenged today, then the parliament may take away other fundamental rights tomorrow. This brazen abrogation of a fundamental right must be challenged.
The Supreme Court and the legal fraternity of Pakistan are the first and last line of defence in safeguarding the rights of Pakistanis. They must oppose any unconstitutional acts and steps taken by the state.