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Islamabad High Court Dismisses Appeal Challenging Transgender Candidate’s Nomination for General Elections --- IHC

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Islamabad High Court Dismisses Appeal Challenging Transgender Candidate’s Nomination for General Elections --- IHC

Islamabad, 30-05-2024: The Islamabad High Court has dismissed an appeal challenging the acceptance of nomination papers for a transgender candidate in the General Elections-2024. The judgment, delivered by Mr. Justice Arbab Muhammad Tahir, reaffirms the legal standing of transgender individuals to contest elections. In [Election Appeal No. 50 of 2024], the appellant challenged the nomination of respondent No. 2, a transgender person, under Section 63(1) of the Elections Act, 2017. The central legal issue was whether a transgender person could contest elections for general seats in the National Assembly.

The appellant’s case hinged on the judgment of the Federal Shariat Court from May 19, 2023, which had declared several provisions of the Act of 2018, including sections related to transgender rights, as contrary to Islamic injunctions. Following this, the National Database and Registration Authority (NADRA) had issued a notification on June 13, 2023, to cease the registration of transgender persons, which was later withdrawn on September 25, 2023, after being contested in the Lahore High Court.

The key legislative provisions relevant to the case include:

Section 12(c) of the Elections Act, 2017: Mandates the ECP to promote voter enrollment and participation, specifically mentioning transgender persons.

Section 167(b) of the Elections Act, 2017: Prohibits influencing voters based on gender or transgender status.

Section 170(a)(vii) of the Elections Act, 2017: Criminalizes preventing transgender persons from contesting elections.

Section 203(4) of the Elections Act, 2017: Encourages political parties to include transgender persons as members.

Section 11 of the Transgender Protection Act, 2018: Ensures no discrimination against transgender persons wishing to contest elections.

The appellant argued that the Federal Shariat Court's judgment invalidated the CNICs issued to transgender persons, making them ineligible for elections. However, the Islamabad High Court noted that the Supreme Court's Shariat Appellate Bench had yet to rule on the appeal against this judgment. The Court emphasized that accepting the appellant’s argument would prematurely enforce the Federal Shariat Court's ruling, undermining constitutional guarantees and due process. The Honourable Court concluded that the appeal was not maintainable for two main reasons:

The appellant was not a registered voter in the concerned constituencies (NA 46 & NA 47).
The appellant had not filed objections during the scrutiny process before the Returning Officers.

Moreover, the Court reiterated the constitutional and legal rights of transgender persons to contest elections, referencing the Supreme Court of Pakistan’s 2009 ruling affirming transgender individuals’ entitlement to electoral and other Constitutional rights. The appeal was consequently dismissed, upholding the eligibility of transgender persons to participate fully in electoral processes. This judgment underscores the constitutional protections against discrimination and the commitment to inclusive governance, highlighting the importance of respecting the legal rights of all societal segments, including transgender individuals.