The lower and upper house of Parliament recently rushed legislation titled the "Elections (Second Amendment) Act, 2024". The act has been the subject of controversy, and with good reason.
The act, which has cleared the National Assembly and the Senate, proposes two amendments to the existing sections 66 and 104 of the Election Act 2017 and the addition of a new section, Section 104-A. All three proposed amendments are intended to take effect notwithstanding anything contained in any law in force or any judgment, decree or order of any court, including explicitly the Supreme Court and the high courts. They are also intended to take effect retroactively, from the commencement of the Election Act in 2017.
The series of events preceding this act set an important context that offers greater insight into its intended consequences. The Election Commission of Pakistan (ECP) relied on the Supreme Court's bat symbol judgment to strip the Pakistan Tehreek-e-Insaf (PTI) of party status and notified its candidates as "independents", forcing them to band together under the banner of Sunni Ittehad Council (SIC) post-election in Parliament. Once the ECP denied reserved seats to the SIC, the bench formed in the Supreme Court to adjudicate the matter of reserved seats could either extend this absurdity or offer a broader cure. Consequently, the top court reaffirmed through a majority verdict PTI's constitutional and legal rights as a political party under Articles 51(6) and 106 of the Constitution of Pakistan and declared it entitled to reserved seats proportionate to its true strength in the national and provincial legislatures and quashed all ECP directives to the contrary. In doing so, the order preserved the democratic composition of the assemblies by preventing the coalition government from acquiring an artificial two-thirds majority far exceeding its electoral mandate.
The judicial intervention did not originate from the legislative interpretation of the Election Act 2017. Rather, it was necessitated by the ECP's misinterpretation of the Supreme Court's verdict
Rushed through the Parliament, this act was designed to counter or obstruct the Supreme Court's verdict on reserved seats. The proposed amendment to Section 66 will bar the 41 'independent' candidates, who were instructed by the Supreme Court to file their party affiliation afresh. Further, the amendment to Section 104 will prevent the PTI from filing a new list of candidates for reserved seats - as instructed by the court. The addition of section 104-A, however, will prevent PTI's 'independents' - who declared themselves members of the Sunni Ittehad Council (SIC) after the February 8 elections, from revoking their affiliation with the SIC.
Aside from being a bad-faith exercise intended to achieve an undemocratic outcome, the act's extreme specificity is faulty on constitutional and legal grounds as well.
The act is based on the notion that judicial rulings impacting the composition of the national assembly violate parliamentary supremacy. This notion is faulty for two reasons.
First, the judicial intervention did not originate from the legislative interpretation of the Election Act 2017. Rather, it was necessitated by the ECP's misinterpretation of the Supreme Court's verdict on withdrawing the bat symbol.
The act is a poorly drafted and an undisguised attempt to undermine the democratic composition of the assemblies, as well as the constitutional arrangements upon which Pakistan's democracy is founded, to achieve a one-off political outcome
Second, despite common misperception, the Pakistani Parliament is simply not supreme. While Pakistan proclaims to be a constitutional democracy with a written Constitution, it is not a pure Westminster-style democracy, where (in theory) the Parliament requires only a simple majority to make any law whatsoever. Unlike the UK, Pakistan's Supreme Court is empowered by our Constitution to ensure that ordinary lawmaking and constitutional amendments remain congruent with the basic constitutional framework. As such, lawmaking for the express purpose of undoing a judicial decision is unlikely to pass the constitutionality test, especially following the basic structure doctrine upheld by the Supreme Court in the District Bar Association (Rawalpindi) case.
In addition to the confusion over the constitutional framework, by attempting to make a retroactive law, the ruling coalition has violated universal principles of justice, including those of equality, certainty, and predictability of the law. Changing a law retroactively also runs afoul of the legitimate expectations that have accrued through the operation of the law over time. Reaching back in time to make something illegal or place retrospective limits on lawful actions, especially when no demonstrable harm is done, undermines the rule of law itself. This principle was recently upheld in the Supreme Court (Practice and Procedure) Act 2023 decision, where the court struck down the retrospective right to appeal granted by the relevant act as unconstitutional. In that case, granting a retrospective right was held as unconstitutional. In the instant case, rights are being taken away by the retrospective operation of the proposed act, which is arguably more egregious.
In short, the act is a poorly drafted and an undisguised attempt to undermine the democratic composition of the assemblies, as well as the constitutional arrangements upon which Pakistan's democracy is founded, to achieve a one-off political outcome. The act sets a dangerous precedent whereby bare majorities in the national assembly, elected amidst widespread controversy and cobbled together via a coalition, can use procedural justifications and machinery provisions to diminish the representative strength of their opposition and inflate their own. The composition of the assemblies thus formed would bear no relation to the share of the vote earned by each party at the ballot box. It is worth mentioning that even a majority in the House of Commons, a "supreme" parliament, cannot simply allocate itself more seats or take away seats from its opposition through retrospective lawmaking. Legislation passed by such an assembly would be as illegitimate as any diktat issued by an authoritarian regime.
During the dying days of the Bandial court, political partisanship and personal rivalries provided ample opportunity for external forces to undermine the court's authority and frustrate its decisions via executive and administrative measures. Unfortunately, the machinations now afoot are even more egregious and thus dangerous. Allowing the act, which has been challenged, to stand would be another blow to the Supreme Court's role as guardian and interpreter of the Constitution. One can only hope that the top court will rise above its current divisions to defend both itself and the democratic foundations of our Constitution.