Can Election Act amendments undo SC verdict?

KARACHI: The proposed Election Act amendments aim to nullify the Supreme Court’s July 12 verdict, which recognized independent MNAs as PTI members. Legal experts say these amendments will likely also end up in court, though there is divided opinion on whether the amendments have a retrospective effect or are retroactive in nature.

On Tuesday, the PML-N introduced the Election Act (Amendment) Bill, 2024, in the National Assembly. Proposed by MNA Bilal Azhar Kiyani, the bill seeks to restrict independent lawmakers from joining political parties after a specified time period. The proposed law would amend Sections 66 and 104 of the Election Act, 2017, ensuring candidates remain independent if they have not declared party affiliation before receiving an election symbol. Additionally, the bill states that if a political party fails to submit its list for reserved seats within the prescribed period, it will lose eligibility for those seats.

Speaking to The News on Tuesday evening, PILDAT President Ahmed Bilal Mehboob says that it is “quite obvious” the proposed amendment intends to nullify the effect of the Supreme Court’s July 12 verdict “which facilitated the recognition of those independent MNAs as PTI MNAs who had not declared their affiliation with the PTI while filing nomination papers. The bill is also meant to block the way for those MNAs to join the PTI who were elected as independent but later joined the Sunni Ittehad Council (SIC)”.

How would that work? To understand the legal nuances, The News contacted lawyers for clarity. According to Supreme Court advocate Hafiz Ahsaan Ahmad Khokhar, the proposed amendments would have “a legal impact on the ongoing controversy surrounding reserved seats for women and minorities.”

Interestingly, in Khokhar’s opinion, “the proposed electoral amendments would take effect immediately and be deemed to have effect from the promulgation of Election Act 2017, which means that these changes will also be effective retroactively from the day of the promulgation of Election Act, 2017 and will supersede the effect of any court rulings pertaining to the aforementioned clauses”.

This is not the only opinion, however. For Barrister Ali Tahir, while the proposed amendments “directly attempt to overrule the Supreme Court’s short order in the reserved seats case, the government has jumped the gun and opened a can of worms for itself.”

He explains: “The wording of the bill -- even though it is camouflaged by referring to other provisions, laws and high courts -- includes orders of the Supreme Court of Pakistan. The word ‘notwithstanding’ has very recently been interpreted by the courts to mean that a provision containing the notwithstanding provision will prevail over other provisions, and here ‘notwithstanding’ has also been used for orders of the Supreme Court -- thereby attempting to overrule the announced short order. It attempts to roll back the entire process ordered to be initiated by stating that candidates cannot join the PTI”.

The bill if turned into law will fail for two reasons, pronounces Barrister Tahir. First, he disagrees with Khokhar’s assessment and says that “such laws cannot have retrospective effect”. Second, he adds, though the SC’s reserved seats “detailed reasons are yet to be delivered, I am sure in those detailed reasons, constitutional interpretation will be the backbone for the directions contained in the short order, especially with regard to constitutional provisions relating to democracy and the fundamental right for political participation”. This is why the bill would likely fail if it became law, says the barrister.

Regarding the July 12 verdict, PILDAT’s Ahmed Bilal Mehboob points out that the Supreme Court “arguably rewrote some provisions of the constitution and the Elections Act, 2017 and some may interpret this as trespassing into the domain of parliament”. In some way then, says Mehboob, the proposed amendment may be seen as “parliament defending its turf”. It “squarely pits parliament against the top judiciary, and it remains to be seen who blinks first”.

Mehboob also feels that -- on another level -- this can also be seen as “yet another episode of the ongoing fight between the PTI on the one hand and the PMLN-PPP combine apparently supported by the establishment on the other.” He too says the amendment has a retrospective effect and “quite pointedly tends to overrule the Supreme Court order”.

Barrister Tahir, while disagreeing on the amendment having any such retrospective effect, does say that “for the time being and especially with regard to the time-specific directions, the ECP may delay implementation of the SC order pointing to the amended laws in vogue if the bill ultimately is passed by parliament”.

The News also asked the legal commentators if these amendments could potentially help clear the reserved seats issue or will they just end up complicating an already messy affair, and whether there was this need for the law to be further tweaked and clarified. Barrister Tahir thinks that the issue will be prolonged temporarily since “the ECP may delay implementation seeking the Supreme Court’s guidance once the bill makes it to the statute book”. Eventually, though, he feels the law will not succeed.

On the reserved seats issue, while he says we should wait for the detailed order of the SC, Tahir does feel that there was “definitely a lot of room for interpretation as the constitutional and statutory provisions did not provide for a cut-out specific answer to the problem, and thus the reasons will have to fall back on larger constitutional values”.

Though Hafiz Ahsaan acknowledges that Articles 51 and 106 of the constitution, in conjunction with Section 104 of the Election Act 2017 and Rules 92 and 94 of the Election Rules 2017, provide a comprehensive mechanism for determining the political parties or independent returned candidates’ eligibility, qualification, declaration, and allocation of reserved seats, he says that “there was a need in the Election Act to have more clarity and explanation to avoid any legal confusion on the matter”.

The eventual destination of these amendments, says Khokhar, will be the courts. Why? Because although “the legal competence of parliament to enact laws, either prospectively or retrospectively is unquestionable, because of the ongoing dispute between political parties over the distribution of reserved seats, these amendments if passed by parliament will end up for their final fate in court”.

Khokhar reiterates that, if parliament approves, these amendments “will become enforceable and obligatory on all state institutions, superseding court rulings on the matter, until they are challenged or declared otherwise by the constitutional courts”.