The ruling coalition threw the gauntlet to the Supreme Court on Tuesday as parliament gave its seal of approval to an election amendment bill, which barred an independent candidate from joining a political party once he had exhausted the option.
The Elections (Second Amendment) Act, 2024, is seen as an attempt to circumvent a recent ruling of the top court regarding reserved seats in the national and provincial assemblies. The majority judgment by the full court had declared the Pakistan Tehreek-e-Insaf (PTI) eligible for the reserved seats.
If the Supreme Court judgment delivered on July 12 is implemented, it will make the PTI the single largest party in the National Assembly and deprive the ruling coalition of the two-thirds majority in the lower house of parliament.
The Supreme Court had directed the PTI-backed independent lawmakers, who are sitting in the assembly under the banner of Sunni Ittehad Council (SIC), to submit affidavits of their party affiliation within 15 days of the ruling for the re-distribution of the reserved seats among political parties.
With the apparent objective of depriving the PTI of its reserved seats for women and minorities, the Pakistan Muslim League-Nawaz (PML-N)-led coalition government got the bill passed from both houses of parliament on Tuesday.
PML-N's Bilal Azhar Kayani had tabled the Elections (Second Amendment) Act, 2024, in the National Assembly on July 30. It was not surprising that the bill stipulated that the proposed act would take effect from the commencement of the Elections Act, 2017.
Currently, the PTI stood at the crossroads because its current identity in parliament remained associated with the SIC. The party could only restore its presence in the legislature if the top court's judgment was implemented.
Given that scenario, the PTI-SIC opposed the move to amend the election law but it couldn't stop the treasury benches as they had the required number to make changes in any law. Nevertheless, PTI leaders announced that they would challenge the bill in the court.
PTI Chairman Barrister Gohar Ali Khan said that the bill undermined democratic principles. The parliament was indeed supreme but the authority to interpret the law was with the Supreme Court, he said, adding: "The PTI will challenge the 'politically motivated' piece of legislation."
During the National Assembly session, PTI's Ali Muhammad Khan questioned whether parliament could be used by a political party to attack the Supreme Court for its political gains. "The bill is aimed at depriving the PTI of its right," he asserted.
He said that his party could not be denied of the right given to it by the Supreme Court. How could a new law be enacted regarding a judgment of the court right after it was issued," he asked. He termed the passage of the bill, "an attack on the Supreme Court through parliament by the government".
While rejecting the bill, Khan said that law-making should be done for the benefit of the country. Just like Gohar, he too announced that PTI would challenge it in the Supreme Court because parliament was not standing behind it, rather a single political party was behind it.
Speaking to the media outside parliament, Kayani said that the legislation was aimed at further clarifying and strengthening the existing law. He opined that there was nothing wrong with the bill and "it isn't in conflict with the Constitution and the law".
Kayani, the mover of the bill, reiterated what his party lawmakers had been saying that the PTI was not even a party in the case in the Supreme Court but it was given relief whereas the SIC was the petitioner yet it didn't get any relief.
What led to bill?
Political temperature rose soon after the judgment as the government announced it will challenge the decision, and that the PTI would be banned and high treason proceedings would be initiated against former prime minister Imran Khan, former president Arif Alvi and former deputy speaker Qasim Suri.
Subsequently, the ruling party's member had presented the bill, apparently, to create hindrance in the smooth implementation of the judgment as the Election Commission of Pakistan (ECP), despite raising objections to the verdict, had announced through a press release to implement it.
It all started after post-February 8 general elections, when the ECP distributed reserved seats among other political parties on the ground that the SIC, comprising PTI-backed independents, had not submitted the list of its candidates, among other things, for the reserved seats.
Subsequently, the decision was challenged and, initially, upheld by the Peshawar High Court (PHC) but, later on, the SIC went to the Supreme Court against the ruling. The full court of the Supreme Court set aside the PHC verdict with a 8-5 majority.
Amendments
Through the bill, Kayani not only sought amendments to the Section 66 [Candidate to file certificate of party affiliation] and 104 [party lists for reserved seats] but also insertion of new section – 104-A – and provisos in the ECP Act, 2017.
Through the amendment to Section 66, he has sought the addition of expression: "Notwithstanding anything contained in this Act or any other law for the time being in force or any judgment, decree, or order of any court including the Supreme Court and a High Court, a contesting" for the words "A contesting".
He sought addition of provisos: "Provided that if a candidate, before seeking allotment of a prescribed symbol, has not filed a declaration before the Returning Officer about his affiliation with a particular political party by submitting party certificate from the political party confirming that he is that party's candidate, he shall be deemed to be considered as an independent candidate and not a candidate of any political party".
It adds: "Provided further that an independent candidate shall not be considered as the candidate of any political party if at later stage he filed a statement duly signed and notarised stating that he contested the general elections as a candidate of the political party specified therein."
Apparently, the provisos has been drafted carefully to specifically negate what the majority judgment of the Supreme Court had stated. In Section 104, a similar expression has been added, which is followed by the proviso making a political party ineligible for the quota of reserved seats at a later stage.
"Provided further that if any political party fails to submit its list for reserved seats within the aforesaid prescribed time period, it shall not be eligible for the quota in the reserved seats at later stage," reads the proviso.
Subsequently, the bill seeks insertion of a new section 104-A [consent for joining of political party by independent returned candidate to be irrevocable] in the act.
The new proposed section states: "Notwithstanding anything contained in this or any other law for the time being in force or a judgment, decree or order of any court including the Supreme Court of Pakistan and a High Court, the consent of an independent returned candidate once given for joining a political party for purposes of clause (6) of Article 51 or clause (3) of Article 106 shall be irrevocable."
In the statement of 'Objects and Reasons', Kayani stated that Articles 51 and 106 of the Constitution provided for the allocation of seats to the national and provincial assemblies, respectively, along with mechanism for the elections thereto and included that the independent returned candidate or candidates might duly join a political party within three days of the publication in the official Gazette of the names of the returned candidates.
Kayani maintained that the Elections Act, 2017, and rules made thereunder also provided for the right to independent returned candidate or candidates to duly join a political party at his consent.
"Neither the Constitution nor the Elections Act, 2017 provide for joining a political party by an independent returned candidate or candidates at subsequent stage when they have already exercised the option to join the political party at a point of time as specified in the Constitution," he added.
To provide clarity in the law in true spirit of the Constitution, he stated, the bill had been designed to expressly provide that no independent candidate or candidates would exercise his/their right to join a political party at a subsequent stage after the period specified for the purpose in the Constitution and the law.
During Tuesday's session, the chairman of the Parliamentary Affairs Standing Committee Rana Iradat Sharif presented a report on the Election Act Amendment Bill. Later on, the bill was presented for approval, accompanied by a motion that the assembly overwhelmingly supported, despite vociferous opposition.
In the evening, the Senate also passed the bill without facing much resistance from the opposition.
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