ECP in a fix over reserved seats case judgement

• Commission again approaches Supreme Court for clarification, guidance
• Watchdog says if verdict enforced it will be nullifying new law; requests court to stay its Sept 14 clarification order
• Says its intent should not be doubted as it has complied with SC directives ‘without demur’

ISLAMABAD: The Election Commission of Pakistan (ECP) on Thursday approached the Supreme Court with a set of petitions seeking further clarification as well as a review of the Sept 14 clarification order in the reserved seats case.

The commission highlighted that it was in dire straits after the promulgation of the Elections (Second) Amendment Act 2024 recently enacted with retrospective effect as by implementing the court order it would be nullifying the newly promulgated law.

At the same time, the ECP also requested the apex court to stay the operation of the clarification order until the top court issued clarification regarding the effect of the Elections (Second) Amendment Act in the interest of justice.

In July, the National Assembly bulldozed a law seeking to bar the PTI-backed independent legislators from joining the party. Consequently, the vires of the amendment act were also assailed before the Supreme Court, but the same has yet to be taken up by the court.

Through its Sept 14 clarification order, the Supreme Court had rebuked the ECP for not implementing its July 12 judgement in the reserved seats case.

Moved through Advocate Taimoor Aslam Khan, the petition also referred to the Sept 19 Speaker National Assembly Sardar Ayaz Sadiq’s letter, highlighting that the reserved seats case ruling was based on the law prior to the amendment. It said the effect of the judgement was nullified by the act of parliament.

Moreover, the members whose notifications had been set at naught also preferred applications before the commission seeking to give effect to the amendment act.

The petition pleaded that the commission had implemented the July 12 directives of the Supreme Court by notifying 39 candidates. It had also sought clarification on the point of the absence of a valid organisational structure of the PTI, which will confirm the political affiliation of the returned candidates (MNAs and MPAs) on behalf of the PTI who have filed their statements in light of the July 12 short order.

The intent of the commission was vivid from its conduct in complying with the directives of the Supreme Court without any demur, however, it was on account of a legitimate point of concern that the ECP availed the option of reaching out to the apex court for a clarification.

The commission being a constitutional body has always governed its affairs in accordance with the law of the land and due compliance with the Constitution, the petition said, adding it was with this intent that the ECP had approached the court to seek a clarification, as the Sept 23 detailed judgement had not yet been released at the time, which is now in field.

Likewise, the separate review petition by the commission recalled how the Supreme Court in the 1981 judgement had categorically held that as long as the law holds the field the same will be effective until set at naught or declared otherwise.

The same principle has been affirmed by the Supreme Court in 2010 by stating that every law of the land, so long as it exists on the statute books has to be respected and must be followed.

According to the petition, the presumption has yet to be rebutted that parliament transgressed its jurisdiction or that in any manner it had invaded the fundamental rights. As per judicial precedents it has been laid down that the wisdom of the legislature is beyond the scope of judicial review, the petition highlighted, adding it was not the function of the court to legislate or to form an opinion as to how and what parliament ought to legislate.

Since the provisos have been inserted validly, therefore, the question qua its enforcement cannot be refused even if the result of it is to nullify the effect of a judgement, unless the Supreme Court declares so, the petition pleaded.

Citing a number of judgements, the petition argued that it cannot be denied that the effect of a judicial decision can be nullified by legislative action.

Published in Dawn, September 27th, 2024