Newly-passed Elections Act challenged in SC

ISLAMABAD: Some Pakistan Bar Council (PBC) members on Thursday requested the Supreme Court to declare the Elections (Second Amendment) Act 2024 ultra vires and in violation of Articles 8, 9, 17, 25, 51 and 106 r/w Articles 4 and 5 of the Constitution of Pakistan.

Seven members of the PBC Abid S Zubairi, Chaudhry Ishtiaq Ahmed Khan, Tahir Faraz Abbasi, Munir Ahmed Kakar, Shafqat Mehmood Chauhan advocate and Shahab Sarki filed a joint petition in the apex court under Article 184(3) of the Constitution.

They have prayed the apex court to set aside any action taken by the Election Commission of Pakistan (ECP) or any other authority under the Elections (Second Amendment) Act 2024, besides restraining the Federation and ECP from giving effect to the provisions of the Elections (Second Amendment) Act 2024, that are violative of the full court judgement of July 2, 2024.

The PBC members have made the Federation of Pakistan, through Ministry of Law and Justice secretary, ECP through the chief election commissioner and the four provinces through their chief secretaries as respondents.

They questioned as to whether the Elections (Second Amendment) Act 2024 is non est, ultra vires to Articles 4, 8, 9, 17, 51 and 106 of the Constitution, and therefore liable to be set aside? And whether the Act poses a threat to the rule of law, access to justice, separation of powers and the independence of the judiciary?

The petitioners submitted that the Act, the legislature has attempted to override the apex court judgement which is in gross violation of the principle of trichotomy of powers.

“The questions of constitutional law, and the application of the Constitution, raised in the petition are of general public importance and concern the constitutional rights of the people of Pakistan in general,” they claimed. They submitted that the Act is in contravention of Article 8 and fundamental rights and judgement of the Supreme Court, and therefore is void and non est.

“The legislature in Pakistan do not enjoy a supreme status and are subservient to the Constitution of the Islamic Republic of Pakistan so also other organs of the state,” the petitioners maintained.

They submitted that it is a settled law that a judgement of the Supreme Court becomes binding not only on all courts of Pakistan but also on all organs of the state, adding that the effect of a Supreme Court judgement cannot be destroyed, annulled, set aside, vacated, reversed or modified by a legislature.

The SC order of July 12 created vested rights in favour of the PTI-backed candidates as well as the electorate which cannot be retrospectively annulled by an ordinary act of parliament.

Moreover, they submitted that Section 4 of the Act is clearly an attempt to override the Supreme Court’s order of July 12 as the order clearly stated that “any of the remaining 41 returned candidates out of the aforesaid may, within 15 working days of this order file a statement duly signed and notarized stating that he or she contested the general election as a candidate of the political party specified therein”.

However, Section 4 of the Act essentially prohibits an individual from joining another political party, in this case the PTI, after joining SIC as an independent candidate. Furthermore, they submitted that Section 4 of the Act is also discriminatory. “If the legislature truly saw virtue in prohibiting political candidates from switching parties after having joined a particular party, then the prohibition should have applied to all political candidates and not just independent candidates,” they submitted.