Will the govt’s latest attempt to ‘sap’ PTI’s strength survive in court?

In a noisy session on Tuesday, the National Assembly (NA) yet again passed a bill to amend the Elections Act, 2017. Shortly after the Elections (Second Amendment) Act, 2024 sailed through the lower House of Parliament, it was passed through the Senate as well after rules to put it to vote were suspended.

The Amendment Act, tabled in the NA by PML-N lawmakers Azhar Bilal Kayani and Zeb Jaffar as a private member’s bill, was said to be aimed at curing the defects in the Elections Act, 2017, which may be the basis or may have contributed in some way to the Supreme Court (SC) majority verdict in the reserved seats case on July 12. The verdict, detailed reasons of which are still awaited, caused a storm on the political scene as it would radically change the political power map in which the two-thirds majority attained by the ruling alliance would be reduced to a simple majority due to the redistribution of seats in the National Assembly and the unsettling of political mathematics in the national and provincial assemblies.

Meanwhile, the PTI has announced that it will file a constitutional challenge before the SC against the amendments. From a plain reading, it appears that the Amendment Act is intended to be applied retroactively to take control of the political consequences of the apex court’s verdict.

But what exactly is it that the government hopes to achieve as a result of the amendments and what is it that the PTI fears to lose?

These questions are likely to become the centre of constitutional and political debates in the coming days and weeks. It would, therefore, be worthwhile to understand how the Amendment Act changes the Elections Act, 2017.

The amendments

Before we consider the amendments, let us first consider the broad contours of the Supreme Court’s verdict in the reserved seats case.

The order holds that:

• Even without a common election symbol, the PTI was and is a political party; therefore, the list of 80 candidates submitted by the ECP shall have the following legal status
• The 39 winning candidates who mentioned PTI in their (i) declarations or (ii) statements, or/and (iii) submitted PTI’s certificate would be considered PTI members of the National Assembly;
• In addition, due to “peculiar facts and circumstances” at the time of elections, the remaining 41 candidates may make a fresh declaration of affiliation within 15 days. If the concerned party confirms affiliation, that candidate too would be considered the party’s candidate;
• PTI shall be allocated reserved seats on the basis of the new calculations for which the party may submit a fresh list of candidates for reserved seats of women and religious minorities.

Broadly, the Amendment Act changes the election laws in three ways, attempting to neutralise the effect of the apex court’s verdict. It amends Sections 66 and 104 of the Elections Act, 2017, and introduces a new section: 104A.

Section 66

Section 66 of the Elections Act 2017, in its original form, prescribes that a candidate who wishes to contest an election as a candidate of a particular political party has to — at the time of filing their nomination papers before the concerned returning officer — file a declaration about their affiliation with that political party along with a certificate issued by their respective party. This is meant to demonstrate that the applying candidate is that party’s candidate from the particular constituency and is eligible to be assigned that particular party’s electoral symbol for contesting the polls.

The two provisos introduced as amendments to Section 66 in the Elections Amendment Act, 2024, stipulate that a candidate who, before the election, does not file such a declaration and certificate issued by the particular party whose candidate they claim to be for the constituency, would be considered an independent candidate.

Such an independent candidate — by virtue of not fulfilling the foregoing requirements — shall not be considered as the candidate of a political party if, at a later stage, they file a statement claiming on oath that they contested the election as a candidate of that political party specified in the affidavit or statement on oath.

The amendment Act further adds that neither any existing law nor a court verdict, including that of the top court, shall have any bearing on the status of the returned/winning candidates who are independent due to the non-fulfilment of the requirements specified in Section 66.

The proposed amendments to Section 66 apparently aim to remove ambiguity, if any, in how it is framed and phrased at present. In other words, it answers the question: whether such a candidate (a) who doesn’t file their declaration of party affiliation at the time of applying for nomination, along with (b) the political party’s certificate to support their claim of affiliation, could at a later stage — including post-election — claim to have contested the election as a candidate of the particular party.

During the last general elections, PTI candidates were unable to contest elections from the party’s ticket after the Election Commission of Pakistan (ECP) decided against letting it retain the ‘bat’ symbol on grounds that the PTI had failed to hold intra-party polls as required by its constitution.

Though the ECP’s decision was subsequently thrown out by the Peshawar High Court, the latter’s verdict was challenged by the ECP and later set aside by a three-member bench headed by Chief Justice Qazi Faez Isa. As a result, the electoral watchdog effectively stopped PTI candidates from declaring themselves as the party’s candidates in their nomination papers with or without a party certificate.

The denial of a common election symbol to a political party is arguably unconstitutional because since 1988 in Benazir Bhutto’s case, except for the brief period when General Musharraf changed the Constitution, there can be no valid constitutional reason to deny an election symbol to a political party. Even if it is considered constitutional for the sake of argument, such a questionable decision should not have resulted in the denial of a political party status to the PTI, which led to the ultimate controversy over the allocation of reserved seats to parliamentary parties present in assemblies. This is exactly what the majority of SC judges have held, among other things, a legal and constitutional wrong in the short verdict of July 12.

Amendment to Section 104(1)

In its original form, Section 104(1) prescribed that in election to seats reserved for women and non-Muslims, political parties must file separate lists of their candidates in order of priority. This had to be done within the period fixed by the ECP, after which the commission would be under obligation to issue such lists of party candidates for quota seats to be published for the public.

The pre-existing proviso in Section 104 stipulated that such lists are not alterable in any manner whatsoever at a later stage.

However, a new additional proviso incorporated in Section 104 prescribes that if any political party fails to submit its list for reserved seats within the time prescribed by the ECP, it shall not be eligible for the quota in the reserved seats at a later stage.

Similar to Section 66, the amendment to Section 104 also provides that no existing law or verdict given by any court shall have any effect on the operation and enforcement of this provision.

Addition of a new provision

A new provision has also been incorporated in the Amendment Act and is numbered Section 104A4. Essentially, the new section is meant to remove doubt, if there is any, about the finality of the status of an independent candidate who decides to join a political party after winning an election or securing a seat. It stipulates that if a candidate expresses their intention and gives consent to join a particular political party after winning the election, the declaration shall be irrevocable.

This change is being introduced to serve the purposes of Clause 6 of Article 51 or Clause 3 of Article 106 of the Constitution, which state that the basis for the distribution of reserved seats to parliamentary/political parties in the National Assembly and provincial assemblies, respectively, shall be proportionate.

At the same time, they stipulate that to allocate a quota of reserved seats, the total number of general seats won in the general election by a political party shall include independent returned candidates who may duly join such a political party within three days of the publication of the names of the returned candidates by the ECP in the official Gazette.

Amendments and SC ruling

The apex court, in its short order on July 12, made specific declarations regarding party affiliation of “independent” candidates who secured seats for the NA in the general elections held on Feb 8, earlier this year.

Following the polls, the Sunni Ittehad Council (SIC) emerged as a strong parliamentary group after 80 returned candidates joined it. These candidates had been declared by the ECP as independent because they had not filed the necessary declaration or contested the elections on the required party ticket to support their claim for political party affiliation. They are also claimed by the PTI to be their candidates.

Another issue which led to the controversy around the allocation of reserved seats was the fact that the SIC had not submitted a list of its candidates for reserved seats as per the law and schedule announced by the ECP. Therefore, the SIC, as a parliamentary party, was deprived of claiming a share in the reserved seats quota fixed for the NA, which according to the Constitution, must be distributed among parliamentary parties proportionate to their strength in the national and provincial assemblies.

During the SC proceedings, the arguments travelled beyond the SIC’s claim in the petition. When detailed facts were brought before the court, it decided to look into the circumstances that led to the declarations by the ECP regarding political party affiliations of the different kinds of lists of returned candidates submitted before it by the electoral body.

Eighty candidates secured a seat each in the NA and whose party affiliation was in question as a consequence of having been declared “independent” by the ECP after the general election. As a result, the true number of seats held by the PTI in the NA and its actual share in the reserved seats quota became moot points before the apex court.

Two lists of candidates who had been declared to be winners (or returned candidates) in the official gazette were submitted by the ECP — one containing the names of 39 candidates who had declared the PTI as their political party at the time of submission of nomination papers, though their declaration was not necessarily supported by a certificate issued by the party as required under the Elections Act, 2017.

The other list contained the names of 41 candidates who had not mentioned any party affiliation in the nomination papers, nor had they submitted a party certificate to demonstrate party affiliation.

Those in the latter category had been declared independent candidates by the ECP and had subsequently joined the SIC to become a parliamentary party. The case before the court was brought by the SIC to claim a proportionate share in the reserved seats’ quota for women and religious minorities in the NA.

The majority of judges (8 out of 13) dismissed the prayer made by the SIC and held that 39 of the 80 returned candidates who were declared to be independent by the ECP and who had made declarations as to their affiliation with the PTI, or had submitted the PTI’s certificate showing their party candidature at the time of submission of election nomination papers, would be considered returned candidates of the PTI rather than the SIC.

It may be recalled at this stage that these independent returned candidates joined the SIC within the constitutionally prescribed three-day period after the declaration of returning candidates by the ECP in terms of Article 51 of the Constitution because the PTI had already been denied the status of a political party by the ECP.

It was further held by the court that the other set of 41 returned candidates who were initially declared to be independent and who later on joined SIC due to “peculiar facts and circumstances” at the time of elections shall now have the opportunity to join any political party including the PTI by submitting a fresh declaration of party affiliation before the ECP within 15 days after the court’s short order.

Further, the court also declared the ECP’s declaration of 39 returned candidates’ affiliation with the SIC as a parliamentary political party along with its decision not to recognise the other 41 candidates as PTI candidates to be null and void with effect from May 6, even though by that time, reserved seats had been allocated to parliamentary parties including the SIC and the presidential election had been held.

The SC, however, set this particular date so as to preserve the latter development — the presidential election. It was at the stage of allocation of reserved seats that the SIC had been denied its share in the quota proportionate to its strength due to returned independent candidates having joined it. The SIC was denied the share in reserved seats on the grounds that it had not filed a list of candidates for the reserved seats quota as stipulated in the Constitution.

The upshot of the verdict is that reserved seats should be re-notified after the reallocation of seats to political parties, including the PTI, on the basis of the number of candidates who declare themselves as PTI candidates and then recalculate reserved seats proportionate to the party strength in the assembly. The verdict thus renders all the electoral and post-election processes carried out since December 2023 ineffective, but only to the extent that the PTI was denied its status as a political party and its consequent inability to claim its rightful share of the reserved seats.

It is this end result that the amendments to the Election Act now aim to neutralise.

In other words, the amendments are an attempt to address the conditions on which the afore-described verdict of the apex court is based, even though the amendment bill nowhere in its text expressly or directly refers to the verdict itself.

What next?

There is every likelihood that the Amendment Act is going to be scrutinised by the apex court in a constitutional challenge by the PTI. The Constitution grants the four provincial high courts as well as the SC power of judicial review of legislative and executive acts in two constitutional ways:

• The Constitution requires all laws to comply with the provisions relating to fundamental rights (Articles 8-28). Laws enacted in violation of fundamental rights guaranteed in the Constitution may be struck down by the superior courts after due examination.
• The Constitution also requires certain matters of legislative and executive including electoral governance, among other things, to be done in a specific prescribed manner. For instance, there can be no law to allow the practice of torture as freedom from torture is guaranteed in all circumstances. No law can be enacted to provide for retroactive punishment. Similarly, the Constitution requires general elections to be held within 90 days of the dissolution of assemblies. This 90-day limit cannot be violated by an executive act.

In other words, the 1973 Constitution, like all other written constitutions, puts limitations on the exercise of executive and legislative powers. In addition, it also requires judicial power not to be exercised or interfered with by the executive as well as the legislature.

Our laws and Constitution allow “common law” conventions to be followed. At common law, legislation with retrospective or retroactive effect may be enacted by Parliament. Moreover, legislation with the specific aim to neutralise a court verdict is also permissible. This principle has been recognised as part of our constitutional conventions in a Supreme Court verdict of 1993 in the case of Molasses Trading.

Empirically speaking, in most instances, it is limited to financial or taxing statutes. For instance, if the court finds an aggravating irregularity in the imposition of a tax, it may declare the statute to be ultra vires. Parliament may then enact a law to cure the ill in the previously existing statute.

There are, however, limits to the extent that Parliament can exercise this power. For instance, the court scrutinising the statute may not allow such an amendment where it violates a constitutional provision or one or more of the guaranteed fundamental rights. The court may also declare a legislative act, to be operational retroactively, null and void where the net effect is to nullify a court verdict, thus interfering with the judicial power with the effect that the principle of judicial independence and any one or more of the aforesaid principles are clearly and directly violated.

While the Amendment Act may have been rushed through Parliament to neutralise the effect of the apex court’s order, the detailed verdict laying the reasons for its findings is yet to be passed. At this stage, it is not known if the court’s findings are grounded in constitutional provisions guaranteeing fundamental rights, or provisions relating to electoral processes, or both.

In case the court’s verdict is essentially and mainly grounded in the constitutional standards, which is likely to be the case, an Amendment Act which merely changes the Elections Act by a simple majority will not be adequate for obvious reasons. A verdict based on constitutional standards set in constitutional provisions would require a constitutional amendment. Nothing less will do.

A bare reading of the Amendment Act also reveals that it hasn’t been conceived adequately as some of the aspects are conflicting. For instance, it reiterates and re-emphasises that a political party that doesn’t submit a list of its candidates for reserved seats within the time frame set by the ECP shall not be allowed to submit such a list at a later stage.

At the same time, the Constitution sets down a specific number of seats in the national as well as provincial assemblies. In the former, for instance, there are 60 seats reserved for women and 10 for religious minorities in accordance with Article 51(3). These seats are required by the Constitution to be allocated to parties proportionate to their representation in the assembly along provincial lines in accordance with Article 51(6) as detailed in the following paragraphs.

In the instant case, where the SIC with 80 seats had been denied its proportionate share of the reserved seats, the rest of the parties in assemblies had to be allocated more seats than they were entitled to because the total number of members, for instance, in the NA cannot be less than 326 as stipulated in Article 51(3).

Therefore, by keeping the PTI/ SIC out of the contest for the reserved seats quota, other parties were enabled by the ECP to obtain more seats than the constitutional scheme would allow. To reach the logical conclusion of completing the House, the ECP sought additional names for reserved seats after the time frame had lapsed.

This means that a violation of the statute — the Elections Act, 2024 — has already been committed by the ECP. Besides, it appears that a serious violation of Article 51, which prescribes the scheme of distribution of seats in the NA on provincial basis, has also taken place.

Under clause 51(3), women are to be nominated for reserved seats according to the number of seats allocated to each province through a proportional representation system on the basis of the total number of general seats secured by each political party from the province concerned in the National Assembly. Here, the words “proportional representation” on provincial basis are the key to the implementation of this constitutional provision. It also means that none of the parties can be allocated more than their share of reserved seats.

As discussed earlier, the SC majority verdict has held that the PTI was a political party prior to the election day and remains a political party post-election. Therefore, it may be concluded that the denial of status of a political party leading to the PTI’s returned candidates joining the SIC was an irregularity, which has to be examined on the touchstone of the Constitution that guarantees the right to association.

Will the SC verdict not be based on all these aspects? Will the court not take into account all these and many other aspects when it scrutinises the Amendment Act together with or separately independent of the issue of implementation of its order of July 12?

To hope otherwise would be living in fool’s paradise. Albeit, a lot will depend on how political events unfold and how the SC’s internal politics, and the power dynamics of the judges’ committee meant to form benches shapes the allocation of cases to different benches in the coming weeks.

What then is it that the government actually hopes to achieve with this legislation? Perhaps, the government simply hopes to buy time to achieve something other than strictly in the legal and constitutional domain. The court in its short order had given a schedule of sorts to the ECP to implement its directions by August 6 — the same day the bill was rushed through Parliament with the clear aim to have a legal basis for delaying the implementation of the order.

Whatever it may be, there’s little likelihood for the Amendment Act, even if it survives the court’s scrutiny, to be interpreted in the manner it is intended and affect the composition of assemblies contrary to the court’s verdict pronounced in the reserved seats case.

Header image: Prime Minister Shehbaz Sharif addresses the National Assembly. — NA/X