he passage of Election (Second Amendment) Bill, 2024, has reignited a debate about the roles of the Legislative and the Judiciary. The law, that will disallow independent parliamentarians from ‘joining’ political parties after a specified period and requires political parties to submit candidate priority lists by the Election Commission deadline, is the latest example of differences over legislative authority and judicial oversight.

Historically, the superior judiciary in Pakistan has taken an assertive role in matters it deems critical to upholding the constitution and ensuring fair democratic processes. The decision to nullify certain electoral timelines and practices, as noted in recent rulings, reflects its proactive stance in electoral matters. This, however, has been perceived by many in the parliament as an encroachment on its legislative domain, leading to heightened tensions and a legislative pushback through the Second Amendment Bill 2024.

This bill goes beyond an expression of dissatisfaction with the verdict. The Election Commission of Pakistan as well as the government have already filed review petitions against the Supreme Court verdict concerning the reserved seat case. The ECP has argued that the order disrupted the electoral process. This view has been echoed by various political analysts who have seen the judicial intervention as overstepping the constitutional mandate.

The passage of the Second Amendment Bill, 2024, may be seen as an attempt by the parliamentarians to reclaim control over electoral regulations. This legislative action aims to establish a more rigid and predictable electoral framework.

The apparent conflict between the parliament and the apex court in this case is rooted in differing interpretations of constitutional powers. The superior judiciary, mandated to interpret and uphold the constitution, has often intervened in legislative actions it deems unconstitutional or detrimental to democratic principles. These powers are deeply embedded within the concept of judicial review. For example, the rulings on the timing and procedures for candidate nominations are aimed at ensuring fair electoral practices. However, some parliamentarian view these rulings as restrictive and intrusive.

At the heart of this matter lies the question of whether a parliament can legislate on a matter after a ruling has been rendered by a court. The question tests the boundary of the separation of powers. Historically, the Judiciary has exercised significant authority in interpreting the constitution even if this has sometimes brought it into conflict with the Legislative.

This dynamic sometimes places the courts and the parliament at odds, particularly when judicial decisions are perceived to undermine legislative intent or overstep constitutional boundaries. Some legal experts argue that preemptive measures encroach on the legislative process and disrupt the intended balance of power.

The Aitezaz Ahsan case and the Dr Mobashir Hassan case are examples of the courts’ willingness to suspend laws deemed unconstitutional. The former established that laws should continue to operate until conclusively deemed unconstitutional. The latter, however, allowed for suspension under extraordinary circumstances. The Supreme Court’s reliance on the latter precedent, citing extraordinary circumstances, has been contentious. Some of its critics have argued that the court overlooked the more pertinent Aitezaz Ahsan precedent, resulting in judicial overreach.

The principle of separation of powers is fundamental to Pakistan’s constitutional framework. It ensures that the Executive, Legislative and Judicial branches operate independently, providing checks and balances against one another’s excesses. The latest legislation seems to change this balance. Its critics have said the bill will infringe upon the Judiciary’s role in ensuring fair electoral processes. The court has previously held that it has the authority to intervene in legislative matters if there is a violation of the constitutional mandate. This perspective is supported by past rulings where Supreme Court invalidated legislative actions that were deemed unconstitutional.

The current controversy also brings to the fore the question of whether a parliament can override judicial decisions. The doctrine of parliamentary sovereignty suggests that the legislature holds the ultimate authority in law-making. However, in practice, this sovereignty is constrained by constitutional provisions and judicial review. The Judiciary’s power to interpret the constitution and invalidate laws that conflict with constitutional principles serves as a check on legislative excesses. Tension arises when judicial interpretations are perceived to be contravening legislative intent.

The courts’ power to review and potentially nullify legislative actions has long been a point of contention. The recent judicial decisions to suspend legislative enactments, such as the Supreme Court (Practice and Procedure) Bill 2023, underscore the Supreme Court‘s proactive stance in safeguarding its jurisdiction. Critics of the Judiciary’s reach could argue that such interventions represent judicial overreach, undermining parliamentary sovereignty. The suspension of the Supreme Court (Practice and Procedure) Bill, for instance, was perceived by some as an overstep and provoked a debate on whether the court can act preemptively and strike down laws not yet enacted.

The core issue is whether a parliament can override Supreme Court rulings through new legislation. The recent amendment appears to be an attempt by the parliament to assert its legislative supremacy, potentially at the cost of judicial authority. This has sparked a debate on the limits of parliamentary power and the judiciary’s role in interpreting the constitution.

The judiciary’s defenders will argue that it is within its purview to ensure that legislative actions do not contravene constitutional principles. This is evident in the judiciary’s scrutiny of electoral laws, which must align with constitutional guarantees of free and fair elections.

Conversely, proponents of the amendment bill assert that the parliament, as representative of the people, holds the ultimate legislative authority. They contend that judicial interventions in legislative matters erode democratic principles by undermining the elected legislature’s mandate.

One of the main justifications of the bill is that it ensures electoral integrity by preventing manipulation and maintaining party discipline. However, opponents contend that these restrictions infringe upon individuals’ political freedoms and the democratic process.

The Supreme Court’s response to the bill will be crucial in determining the future equilibrium between the two branches. If the court upholds the new law, it may signal a shift towards greater legislative autonomy. Conversely, if the law is truck down, it will reinforce its role as the ultimate arbiter of constitutional matters.

The writer is an advocate of High Court, a founding partner at Lex Mercatoria and a visiting teacher at Bahria University’s Law Department. She can be reached at minahil.ali12@yahoo.com