The PTI on Wednesday moved the Supreme Court against a law that would bar independent lawmakers from joining a political party after a stipulated period.
A bill, titled “Elections (Second Amendment) Act, 2024” proposes changes to the Elections Act 2017 and is apparently aimed at circumventing the Supreme Court’s July 12 ruling, which granted the PTI reserved seats and set it to re-emerge as the single largest party in the National Assembly (NA).
PML-N lawmaker Bilal Azhar Kayani had introduced the bill in the NA a week ago, after which it had been rushed through the lower house’s Standing Committee on Parliamentary Affairs by 8-4 votes.
The move comes just a day after both houses of the Parliament — the NA and the Senate — passed the legislation amid strong opposition from the PTI. The Parliament saw hasty proceedings as both houses passed the bill after the suspension of the rules, without any debate on the issue.
While the bill had been considered by the NA committee, it was passed by the Senate without being referred to the relevant committee as required under the rules and the parliamentary traditions.
PTI MNA Gohar Ali Khan filed a petition in the SC today, requesting it to declare the newly passed amendments as “unconstitutional”.
“[…] The instant petition seeks to challenge, therefore, subversion of the democratic process made by the Impugned Act and is, therefore, a petition that raises questions of immense public importance with reference to the enforcement of the fundamental rights, conferred by the Constitution, in particular the rights guaranteed by Article 17,” read the petition, a copy of which is seen by Dawn.com.
“Past and closed transactions that have taken place in terms of the Constitution and the Elections Act, 2017 prior to the enactment of the Impugned Act cannot be undone through the deemed retrospectively purportedly assigned to the Impugned Act,” it added.
“The expression of the will of the people once made cannot be retrospectively subjected to restrictions that were non-existent at the time, and that are in any case unconstitutional. Actions taken by the people and their chosen representatives in the exercise of their constitutional rights cannot be undone by parliament through legislation. Such legislation suffers from malice in law.”
The petition was filed under Article 184(3) (original jurisdiction of the Supreme Court) of the Constitution.
Article 184(3) of the Constitution sets out the SC’s original jurisdiction and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.
The federal government and the Election Commission of Pakistan have been made respondents in the case.
The petition asked the apex court to bar the ECP from allocating reserved seats for women and minorities to other political parties and grant them to the PTI as per the SC’s July 12 order.
It recalled that the PTI has already submitted its list of candidates for the reserved seats to the ECP.
Already existing ‘practice’ turned into law: information minister
Meanwhile, Information Minister Attaullah Tarar asserted that the “practice” and “rule” for the changes introduced were already in place but were simply being “turned into a law” now.
“That rule has been given a legal shape through this bill,” Tarar said, referring to the rule that provides independent lawmakers a chance to join a party within three days of being notified as winners.
Addressing a press conference in Islamabad, Tarar asserted that “floor-crossing” (changing one’s political party) was not permitted under the Constitution.
The PML-N MNA questioned if a lawmaker’s affidavit stating his party affiliation could be “cancelled” and if that person could join another party.
“Once an MNA has taken the oath, can you end his membership, skip the rest of the process, and form a new party by having new members cross floors?” he asked.
Rushed through Parliament
In the NA, opposition members raised slogans, waved placards, and tore apart copies of the bill in front of the speaker’s dais.
PTI MNAs Ali Muhammad Khan and Sahibzada Sibghatullah moved separate amendments to the election law, demanding that the bill should be referred to a select committee. However, both of them were rejected by the House through a voice vote.
Dr Farooq Sattar of the Muttahida Qaumi Movement-Pakistan (MQM-P) — a key ally in the ruling coalition — also decried the “bulldozing” of the legislation, lamenting that his party was not consulted by the ruling PML-N on the matter.
“What will the government do when the SC will strike it down? What will be the next step?” asked MQM-P’s Dr Sattar, terming it the “worst legislation”.
PTI Chairman Barrister Gohar expressed hope that the apex court would set it aside once the party challenged it.
“It is better for [PM] Shehbaz Sharif to talk to [former Bangladesh PM] Hasina Wajid to find the route to escape,” Gohar said about the situation in Bangladesh.
Interestingly, the most forceful defence of the controversial law came from PPP’s Shazia Marri who made an emotional speech in which she targeted PTI founder Imran Khan, prompting noisy protests and an exchange of hot words with the opposition.
In the Senate, the bill, which had been passed with two amendments in the NA, was introduced by PML-N’s Talal Chaudhry.
Speaking in the Senate, Law Minister Azam Nazeer Tarar said it was the right of parliament to legislate. “We cannot give this right to 17 individuals,” he said, in an apparent reference to the SC judges.
Contents of the bill
The bill, which would become an act of parliament after the president’s assent, proposes amendments to the Election Law 2017.
It suggests that a political party should not be allocated seats reserved for women and non-Muslim candidates if it fails to submit its list for the reserved seats within the prescribed time.
The law is designed to have a retrospective effect, meaning it would come into force from 2017 onward, when the original Elections Act was passed to become law.
Another amendment says that candidates should be considered independent lawmakers if they had not filed a declaration with the returning officer (RO) about their affiliation with a particular political party before seeking the allotment of a poll symbol.
The amendments to sections 66 and 104 of the Elections Act, originally moved by PML-N’s Kiyani in the NA, also inserted a declaration that the proposed amendments would take precedence over court orders, including the SC.
