Elections Act amendment cannot retroactively undo July 12 verdict, reaffirm 8 SC judges

The Supreme Court of Pakistan has reiterated that amendments made to the Elections Act cannot be applied retroactively to alter its July 12 ruling.

In a detailed clarification issued by eight judges on Friday, the court responded to applications from the Election Commission of Pakistan (ECP) and Pakistan Tehreek-e-Insaf (PTI), both seeking clarification on the impact of recent changes to the law governing elections.

The clarification was made in light of the ECP’s query regarding the legal effect of the Elections (Second Amendment) Act, 2024. The ECP argued that amendments to Sections 66 and 104, along with the addition of Section 104-A, had altered the legal landscape and sought the top court’s guidance on whether its July 12 judgment—delivered before the amendments—still held force.

PTI, in a separate application, contended that the Supreme Court’s judgment was based on constitutional principles and should not be overridden by legislative changes. It argued that the amendments could not retroactively affect the judgment, particularly concerning the allocation of reserved seats in parliament.

The Supreme Court had earlier ruled on a case concerning the allocation of reserved seats for women and minorities. The court’s July 12 judgment emphasised proportional representation for political parties in line with the number of general seats won, under Articles 51 and 106 of the Constitution. The amendments made by parliament were seen as an attempt to adjust this allocation process, prompting the ECP’s request for clarification.

In its latest response, the Supreme Court reaffirmed its original stance, making it clear that the amendments could not undermine the judgment retrospectively. "The effect of the amendment made in the Elections Act cannot undo our judgment with retrospective effect," the judges stated in the two-page clarification.

The court explained that its original ruling had provided a "window" for parties to seek clarification, should any misunderstanding arise before the release of the detailed reasons. However, with the detailed reasons now issued, the apex court said there was no need for further clarification.

"The judgment of this court has binding effect in terms of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973, and should have been implemented," the clarification read. It emphasised that the amendments made after the July 12 decision had "no bearing" on the ruling and that the ECP was legally bound to implement it in full.

The court granted the original relief to uphold the right of political parties to proportional representation in reserved seats, which it deemed a constitutional requirement. "The commission [ECP] is bound to implement the judgment passed by the Supreme Court of Pakistan, in its letter and spirit, without seeking any further clarification."

The clarification was signed by eight of the Supreme Court’s senior judges, including Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Ayesha A. Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed, and Justice Irfan Saadat Khan.

Previously, National Assembly Speaker Sardar Ayaz Ayaz Sadiq had issued a forceful letter to the Election Commission of Pakistan (ECP), urging it to respect parliamentary sovereignty in the allocation of reserved seats to the Pakistan Tehreek-e-Insaf (PTI).

The letter comes on the heels of a Supreme Court judgment that had ruled that independent candidates, after winning elections, could join political parties and alter their political allegiance followed up by a note released by eight SC judges directing ECP to implement the judgment at the earliest.

On July 12, the Supreme Court declared PTI a parliamentary party and held that PTI was eligible to get reserved seats that were earlier distributed among other parties in the national and provincial assemblies.

However, in response, parliament passed the Elections (Second Amendment) Act, 2024, which imposes new restrictions on party-switching by independent candidates and overrides the Supreme Court’s ruling.

The decision to issue a second clarification reflects the ongoing legal debate surrounding the Elections Act amendments. The amendments, introduced by parliament earlier this year, added a new section, 104-A, and modified existing provisions to retroactively impact the allocation of reserved seats—a move seen by critics as an attempt to counterbalance the court’s ruling.

However, the Supreme Court’s clarification has put the matter to rest, stating unequivocally that its ruling stands unaffected. The judgment, the judges reaffirmed, is final and binding under the Constitution, and no legislative action can be used to subvert it retroactively. The court directed its office to forward the clarification to the ECP and PTI and to upload it on the official website for public access.