The National Assembly on Tuesday passed a bill to amend the Election Act 2017, to the extent of awarding reserved seats, amid great clamour from the opposition. However, questions are being raised about whether this bill, if it becomes law, will be applicable in light of the Supreme Court's majority decision issued last month.
Justice Mansoor Ali Shah led a group of eight judges who, in a full bench panel of 13 top court judges, had ruled that the Pakistan Tehreek-e-Insaf (PT) was a political party in the national assembly and thus eligible to be allotted reserved seats.
The bill has also divided the legal community. One section of lawyers believed that the amendment would be struck down once the matter was taken up in court, while another section of lawyers said that the amendment was in line with the law.
The bill, however, will prevent politicians who contested the February 8 general elections as independent candidates from changing their party affiliation affidavit at a later stage and declaring their affiliation with a different political party.
Past amendments
Amending Section 66 of the Elections Act, the bill says that if a candidate does not submit a declaration of his affiliation with a political party to the returning officer (RO) before seeking allotment of the election symbol, they shall be considered as an independent candidate and not a candidate of any political party.
The amendment to Section 104 reads that if a political party fails to submit its list for reserved seats within the prescribed time, it will not be eligible for reserved seats at any later stage.
Furthermore, it added a new provision to the original legislation titled Section 104A, which declares that an independent candidate's consent or affidavit regarding joining a political party would be "irrevocable" and prohibits its withdrawal and substitution.
The legislation argues that neither the Constitution nor the Elections Act 2017 provides for an independent returned candidate or candidates to join a political party at a subsequent stage when they have already exercised the option to join the political party at an earlier moment, as specified in the Constitution.
Legal conflict
Legal experts say that Parliament's powers to legislate laws are unquestioned, but they questioned the timing of introducing and passing the bill so soon after the Supreme Court issued its majority verdict.
Legal expert Umar Gillani told The Friday Times that pursuant to the top court's majority judgment in the proportionate representation case, the PTI has a right to submit a list of candidates for election to reserved seats in the National Assembly, and the Election Commission of Pakistan (ECP) has a concomitant duty to consider their list.
He further added that legislation cannot remove this right, which the top court had conferred after relying upon constitutional provisions.
Advocate Gillani said that PTI's case does not call for this legislation to be struck down; rather, it argues that the ECP cannot use such legislation to take away a right conferred by a court of law, which rests on the foundation of the Constitution.
"For this reason, I don't think that the PTI can, straight away, go to court to have the legislation struck down. That would be premature. The PTI's petition would be ripe only when there is evidence that the ECP intends to use this provision to snatch its vested right," he maintained.
Constitutional expert Hafiz Ahsaan Ahmad Khokhar told The Friday Times that the current amendments would take effect immediately and be retroactively applicable from the date when the Election Act 2017 was promulgated.
"This means that the current amendments, if approved by the Pakistani Senate, would take effect immediately upon the date of promulgation of the Election Act of 2017 and would have to take precedence over any court rulings given the recent amendments, including the most recent ruling on reserved seats from the Supreme Court on July 12," he added.
He further maintained that the Parliament has the unquestionable legal authority to pass laws either prospectively or retrospectively.
Advocate Khokhar, however, said the Election Act of 2017, and its Sections 104, Rules 92 and 94, and Articles 51 and 106 of the Constitution provide a comprehensive mechanism for determining the eligibility, qualification, declaration, and allocation of candidates for reserved seats in the National Assembly and the provincial assemblies after general elections.
Khokhar further argued that the Election Act needs more clarification and explanation to prevent legal ambiguity.
"However, the timing of these amendments will trigger the legal controversy, and the fate of these will ultimately be decided by the Superior Court, if challenged," he added.
According to another legal expert, Barrister Rida Hosain, if these amendments are challenged in court, they are likely to be struck down as unconstitutional. She argued that the constitutional framework for the allocation of reserved seats could not be undone through an amendment to a law, adding that the amendments were destructive to the democratic structure of our Constitution.
"Effectively, attempts are being made to upset election results through reserved seats allocation. This is not permissible," she maintained.
Barrister Hosain believes that the amendments seek to introduce retrospective penalties or consequences, adding, "It is regrettable that instead of complying with the Supreme Court's decision, attempts are being made to prevent the people's will from being reflected in the assemblies."
Barrister Ahmad Pansota conceded that the Parliament has the legal capacity to amend any law and even the Constitution, but the proposed amendments must be considered in the context of various Supreme Court judgments.
"If the purpose of the legislation, or any amendment in the law is to prejudice an ongoing proceeding, then the same are usually struck down," he said, adding that what they [the government] are trying to achieve through ordinary legislation, it cannot negate the very concept that has been prescribed in the Constitution.
It is pertinent to mention here that the detailed reasons of the majority judgment are yet to come while two judges from the minority, Justice Amindud Din Khan and Justice Naeem Akhtar Afghan, have issued their dissenting notes raising pertinent legal points regarding the grant of reserved seats to the PTI through the short order of majority judges.
The two judges made it clear that any court order that is not in accordance with constitutional provisions cannot be binding upon any other constitutional organ of the state (for example, the Election Commission of Pakistan).