Petition filed against NA's approval of Election Act amendment barring floor-crossing

A writ petition was filed in the Lahore High Court challenging the Elections (Second Amendment) Act, 2024 with a request to not only declare it as ultra vires the Constitution but also restrain the Election Commission of Pakistan (ECP) from allocating the reserved seats for women and non-Muslims to any other political party in the national assembly and the provincial assembly of Punjab.

The petition, filed by through advocate Azhar Siddique, contended that it is respectfully prayed that an instant writ petition may be allowed, and the Elections (Second Amendment) Act, 2024 may kindly be declared to be ultra vires the Constitution in its entirety and of no legal effect whatsoever, of course, in the best interest of justice, equity, and fair play.

The counsel further maintained that Sections 66 and 104 are procedural laws and, based on judicial/constitutional interpretation, cannot take retrospective effect. Thus, the recent amendments are ultra vires the Constitution.

He submitted that the role of the ECP and the previous government, including the caretaker government, has not allowed the process of free, fair, and transparent elections, including but not limited to the issuance of detention orders, registration of cases, and the culmination of different trials based on concocted and fake evidence. 

In two such cases, the cypher and iddat cases, Imran Khan has been acquitted of the charges. Furthermore, the majority judgment of the Supreme Court in August made it clear that a symbol cannot be taken away from a party and was restored to PTI. Therefore, all actions and inactions of the ECP are based on malafide intent, hence, the Amendment Act needs to be declared as ultra vires the Constitution, the petition explained.

The judgment passed by the Supreme Court cannot be overruled or violated in view of Article 189, as the same can only be done through a constitutional amendment in view of Articles 51 and 106. 

The issue of reserved seats rests with the party that contested the election, and in this case, PTI’s candidates were willing to contest the elections on PTI’s symbol but were not allowed to do so by the ECP. 

Through subordinate legislation, constitutional provisions cannot be violated, and thus the Amendment Act is ultra vires the above provisions, it added.

The amendments made through the Amendment Act are person/party specific. The benefit cannot be taken in view of the principle of proportionality and democratic norms because the present ruling parties are already enjoying the quota of reserved seats, and they cannot be given a right to take away an advantage which is indeed party/person specific. 

The parliament cannot make an amendment or such a rule that ultimately benefits certain parties to the detriment of one specific party, and in any case, the same violates Articles 17 and 25 of the Constitution. 

The petition further stated that the actions and inactions on the part of the ECP and the present government undermined the transparency and election process whereby the largest political party and its members were not allowed to contest free, fair, and transparent elections. 

They were deliberately involved in fake cases, the rejection of nomination papers, and abductions of proposers and seconders, all of which are unprecedented actions, and evidence has already been placed on record. Hence, the said amendments violate the principle of free, fair, and transparent elections and need to be declared ultra vires the Constitution, it added.

That on the principles laid down by the Supreme Court in various judgments, especially the Baaz Muhammad Kakar case whereby the amendments were based on malafide and malice, and were person-specific. On the basis of the aforementioned principles read with other judgments on the subject, the present Amendment Act is indeed ultra vires the Constitution.

In the recent elections, the ECP was not able to set the norms for free, fair, and transparent elections and to act like an institution being a constitutional body. In the case of PTI, the ECP acted as a party in various cases, therefore, this clarifies that the ECP has not acted in a non-partisan manner, is not transparent, and is above board which favours specific parties.

It is also a matter of record that the aforementioned legislation is against the principle of a level playing field and has violated the constitutional provisions with reference to the independence of a certain institution by amending an ordinance and making it retrospective in nature clearly showing malafide. 

Indeed, malafide cannot be attributed to legislation, however, this case is a clear exception to the aforementioned general rule. The parliamentary authority has been used for extraneous consideration in order to achieve certain targets.

The petition contended that the basic principles of democracy and constitutional norms need to be observed in the larger interest and the parliamentary democracy should be to preserve, defend, and hold the principle of transparency and a level playing field, however, in the present scenario, the parties sitting in the parliament have transgressed their rights, jurisdiction, and abilities therefore abusing the parliamentary forum for their personal gains.