Govt locking horns with SC again

ISLAMABAD:

With the National Assembly standing committee approving a private member bill to amend the Election Act, the federal government has clearly shown its intent to eliminate the effect of the Supreme Court's (SC) July 12 judgement on reserved seats.

In its judgment, the SC declared the Pakistan Tehreek-e-Insaf eligible to take up women and minority reserved seats in the national and provincial assemblies.

During former chief justice of Pakistan Umar Ata Bandial's tenure, the PDM-led government used the forum of parliament to move against an apex court decision which directed the Election Commission of Pakistan (ECP) to hold general elections for the Khyber-Pakhtunkhwa (K-P) and Punjab assemblies.

The PDM-led government was also successful in countering the SC during former CJP Justice Bandial's tenure for a number of reasons.

Firstly, powerful circles were fully backing the ECP and PDM-led governments when it came to not holding the elections of the two provincial mentioned assemblies. Secondly, the SC was divided in two camps. Even a section of judges was not backing CJP Bandial and his likeminded judges who wanted to see general elections in K-P and Punjab. Another thorn in the side of these judges were the May 9 riots.

Some senior lawyers cannot help but compare the current situation to the events of the past.

The government's main objective is to get a two-thirds majority in parliament to introduce a "judicial package" through a constitutional amendment.

Currently, the SC is not one the same page over the reserved seats matter. CJP Isa urged for a hearing of the PML-N review petition against the July 12 order. However, the majority of the members of the committee disagreed with him. Now it is expected that the hearing of the review petition will be fixed after the court's summer vacations.

There is also mistrust among SC judges. The government is taking full advantage of this situation and seasoned advocates believe the CJP should clear his position in such circumstances.

On the other hand, there are chances that instead of issuing any explanation on the ECP application, the majority of judges will issue a detailed judgement soon.

A section of lawyers are saying that the government is committing a blunder by annoying four future chief justices who are no longer interested in the proposed judicial package.

Legal opinion

Former additional attorney general Tariq Mahmood Khokhar says that a bill further to amend the Elections Act 2017 intends to overrule, at least in part, the supreme court's July 12 reserved seats judgement.

"Parliament's competence to overrule a SC judgement depends on whether the apex court is interpreting the constitution or ordinary legislation. Constitutional interpretation requires a two-thirds majority to affect a constitutional amendment; ordinary legislative interpretation requires a simple majority. In my opinion, the reserved seats case is grounded in constitutional interpretations and democratic principles. A two-thirds majority is required, [in this case]" he adds.

Khokhar states that the current legislature lacks democratic legitimacy. "It should recognise the distinction between what it can do and what it may do. Legislative restraint in this case would be more appropriate," he concludes.

The opinion remains that the government's plan is to help secure a two-thirds majority to effect constitutional amendments which goes against the fundamentals of parliamentary democracy, the independence of the judiciary and the rule of law.

Advocate Chaudhry Faisal Hussain says it seems like an unconventional and desperate attempt to cover up electoral fraud by the incumbent government. It is a reckless defiance of an SC order by the PML-N. In my opinion, this will not be an easy pill to swallow for the apex court as it is an assault on the institution itself rather than judges," he asserts.

Barrister Asad Rahim Khan says that a mandate-less regime continues to contravene the Constitution via bogus bills. He states that the intention to introduce this law is not only a blatant attempt to jump over the judgment of the Supreme Court, it also fails from the outset by violating Article 17 and the right to representation," he adds.

Advocate Abdul Moiz Jaferii states that the proposed legislation will be struck down as being unconstitutional, especially the attempt to make it retrospective. Jaferii says that this is a fundamental legal position, and rights cannot be deprived through a retrospective application of law.

He says that the first proposed amendment in Election Act 2017 attempts to undo the Supreme Court judgment by putting in Section 66 that a party position must be certified before a returning officer in advance to seeking the allotment of a symbol.

"Where the Supreme Court says that the certificate will count till date, the first amendment tries to directly undo its judgment. The second amendment to Section 66 again clarifies this position and says the candidate will be independent. Hence, another direct attack upon the Supreme Court judgment."

The second proposed amendment to section 104 is also a direct attack on the Supreme Court judgment and tries to insert into the law that despite any judgment, if a reserved seats list has not been submitted within time by a political party, it shall not be able to resubmit a new list at a later stage.

The last amendment wishes to put in a new section where they attempt to make the acceptance of an independent by a political party to be irrevocable, again a direct attack upon the SC judgment. Here they are trying to say once the SIC accepted these candidates, there is no resetting their position"

Jaferii says that Supreme Court has delivered its judgment by interpreting the Constitution. Tinkering in the law is not going to solve any of the government's problems," he adds.

Hafiz Ahsaan Ahmad Khokhar states that the current proposed amendments to sections 66, 104, and 104A of the Election Act 2017, introduced as a private bill by two members of the National Assembly, will have legal ramifications on the ongoing controversy surrounding reserved seats for women and minorities.

This controversy was sparked after the general election and ultimately ended up in the Supreme Court because, in Khokar's opinion, the proposed electoral amendments were to take effect immediately and deemed to have effect from the promulgation of the Election Act. This means that these changes will also be effective retroactively from the day the of the promulgation of the Election Act, 2017, and will have supersede effect of any court rulings pertaining to the aforementioned clauses.

Though Hafiz Ahsaan acknowledges that Articles 51 and 106 of the Constitution, in conjunction with Section 104 of the Election Act 2017 and Rules 92 and 94 of the Election Rules 2017, provide a comprehensive mechanism for determining the political parties or independent returned candidates eligibility, qualification, declaration, and allocation of reserved seats for both the national and provincial assemblies following the general election, he feels there is a need for more clarity in the Election Act and clearer explanation to avoid any legal confusion on the subject matter. The legal competence of the parliament to enact laws, either prospectively or retrospectively, is unquestionable, according to constitutional experts.

However, because of the ongoing dispute between political parties over the distribution of reserved seats, these amendments, if passed by parliament, will end up in court to decide their final fate.

He underlined if approved, that these modifications, through proposed amendments, will become enforceable and obligatory on all state institutions, superseding court rulings on the matter, until they are challenged or declared otherwise by the constitutional courts.