The Pakistan Tehreek-e-Insaf (PTI) on Wednesday challenged the recently passed bill proposing to amend the Election Act to allow switching party affiliations to claim reserved seats.
The PTI has requested that the Supreme Court declare the Elections (Second Amendment) Act, 2024, to be ultra vires to the Constitution in its entirety.
The petition came a day after the amendment act was passed by a majoirty in the National Assembly on Tuesday. The bill, however, still has to be tabled in the Senate and pass the upper house of parliament before it can be sent to the President to be signed into law.
The opposition party has further urged the top court to restrain the Election Commission of Pakistan (ECP) from allocating to any other political party reserved seats for women and non-Muslims in the national assembly and the four provincial assemblies that are proportionate to the entitlement of the PTI in terms of, and in accordance with the top court's recent judgment in the reserved seats case.
"Such reserved seats, as aforesaid, may be directed to be allowed to the PTI and its candidates whose names are contained in the lists filed before the ECP in accordance with the judgment of the Supreme Court dated July 12, 2024, and such candidates may be declared elected to the reserved seats for women and non-Muslims," prayed PTI.
The petition contended that Section 2 of the amended act, whereby Section 66 of the Elections Act, 2017, is sought to be amended, is ultra vires the Constitution, adding that the relevant provisions of the Constitution, including Articles 17, 51 and 106, stand duly interpreted by the Supreme Court in the reserved seats case.
"In any case, and without prejudice to the foregoing, the provisions of Section 2 of the impugned act cannot be given retrospective effect," the PTI argued, adding, "The provisions of Section 2 of the impugned act have no applicability as regards the general election for the national assembly and the provincial assemblies held on February 8, 2024, and the subsequent election for the reserved seats for women and non-Muslims in the national assembly and the four provincial assemblies."
It further said that the top court's eight-five majority judgment from July 7 in the reserved seats case has taken into account the gross violations of Article 17 and the fundamental constitutional right of the Pakistani people to participate in the democratic process by voting for political parties of their choice and for candidates contesting under the symbol of the political party of which they are members and candidates.
"The Supreme Court of Pakistan has noted that the general election of February 8, 2024, was marred by a series of decisions and actions that were all intended to prevent the PTI and its candidates from contesting the general election as a political party and as candidates of the PTI."
PTI argued that through an order dated December 22, 2023, the Election Commission of Pakistan declared the then-last conducted intra-party election (IPE) of the PTI to be of no legal effect.
"The consequence of this order of the ECP, as implemented by the ECP, was that the lists filed by the PTI for the reserved seats for women and non-Muslims in the national assembly and the provincial assemblies were not entertained by the ECP."
"It was in view of the denial of the right of the people to Pakistan to participate in the democratic process by voting for the political parties of their choice, in particular, the largest political party in the country, PTI and the candidates put up by the PTI, that the Supreme Court of Pakistan, with full constitutional authority, decided to pierce the fraud enacted by the ECP in order to recognise as a matter of constitutional compulsion flowing out of Article 17 and other provisions of the Constitution the returned candidates of the PTI for the general elections 2024, even though the party tickets/certificates issued in favour of such candidates might have been returned or not made available by the ECP and the concerned Returning Officers in the record maintained by them."
PTI argued that the Supreme Court, in its judgment of July 12, 2024, exercised its constitutional jurisdiction to do 'complete justice' to the people of Pakistan by enabling the recognition of the returned candidates of the PTI by directing that such candidates be recognised as the candidates of the PTI if they were to file a statement duly signed and notarized stating their candidature on behalf of the PTI and such statement being accepted/ confirmed by the PTI.
It is further contended that Section 3 of the amendment act seeks to impose restrictions not contained in the Constitution regarding the submission of lists of candidates for reserved seats in terms of Articles 51 and 106 of the Constitution.
"The aforesaid constitutional provisions contain a fundamental constitutional principle with respect to the composition of the national assembly and the four provincial assemblies."
"It is clear that neither Article 51 nor Article 106 of the Constitution stipulate a rigid timeframe for the submission of lists of candidates for reserved seats. In particular, there is no constitutional requirement that submission of lists of candidates for reserved seats must be made prior to the date of the general election."
"No such stipulation made in any sub-constitutional law can stand in the way of the right of the people of Pakistan to have reserved seats allowed to political parties only in proportion to the general seats won by such political parties."
"Any procedural framework or machinery provision laid down through sub-constitutional law must remain subservient to the fundamental democratic principle, and concomitant right of the people of Pakistan, contained in Articles 51 and 106 of the Constitution."
The petition said Section 4 of the impugned act may not be given retrospective effect. The so-called bar contained in the newly added Section 104A to the Election Act, 2017 by Section 4 of the Impugned Act is not applicable to the facts and circumstances of General Election, 2024."
"A returned candidate who is wrongly declared to be an independent candidate by the ECP and thereby compelled to join a political party other than the party whose candidate he in fact was at the time of the election, and who had obtained the votes of the said political party, cannot be prevented from declaring his affiliation to the political party whose candidate he actually was."