Elections Act changes can’t undo reserved seats ruling: SC

• ECP bound to implement judgement without seeking further clarification, judges say
• Court office told to upload clarification on SC website
ISLAMABAD: The Supreme Court on Friday reiterated that the amendments made in the Elections Act 2017 cannot undo its July 12 judgement in the reserved seats case.
“The Supreme Court granted the relief in the July 12 short order to enforce the right of the electorate through political parties to have proportional representation in the reserved seats under paragraphs (d) and (e) of Article 51(6) and paragraph (c) of clause (3) of Article 106 of the Constitution,” explained the clarification authored by senior puisne judge, Justice Syed Mansoor Ali Shah.
This was the second clarification that came from the bench, following one issued over a month ago that sparked a minor controversy when CJP Qazi Faez Isa asked how it could have been issued when the matter was not on any cause list.
Justice Shah, who led an eight-judge majority in the 13-member full court, explained that amendments made in the Act through the Elections (Second Amend­ment) Act, 2024 after the release of the July 12 short order “will have no bearing and therefore the Election Commission of Pakistan (ECP) was bound to implement the judgement passed by the Supreme Court, in its letter and spirit, without seeking any further clarification”.
The court explained it had to issue the fresh clarification since both ECP as well as PTI had asked for it, saying it was a well-settled exposition of law that “the effect of the amendment made in the elections act cannot undo our judgement with retrospective effect”.
In its July 12 short order, the Supreme Court had explained that the 41 returned candidates — of the total of 80 MNAs — were and are the returned candidates of Pakistan Tehreek-i-Insaf and thus members of PTI’s Parliamentary Party in the National Assembly for all constitutional and legal purposes.
Through its first clarification issued on Sept 14 — the day when the government was supposed to lay the constitutional package in both houses of parliament, but could not do so — the apex court had reprimanded the ECP for not implementing the July 12 judgement in the reserved seats case.
Interestingly, the day when the second clarification was issued, the much touted Constitutional Package was supposed to be tabled on Friday for which simultaneous sessions of the Senate and National Assembly were called. However, the sittings were later adjourned until today (Saturday).
The court office was also directed on Friday to send clarification to the ECP and the representative of PTI, who had filed the application for clarification, and upload the same on the Supreme Court’s website.
The apex court explained that ECP in its application had submitted that the July 12 short order was based on the law which has since been altered by the amendments made to Sections 66 and 104 of the Elections Act, 2017 (elections act) and a new Section, namely 104-A, has also been inserted with retrospective effect from the date of the commencement of the elections act.
Likewise, PTI had submitted in its application that the short order was based on the interpretation and enforcement of constitutional provisions, therefore the amendments cannot supplant the effect of the short order.
The court explained it had already issued a clarification before releasing the detailed reasons and the first clarification, issued pursuant to the short order, was merged in the detailed reasons.
The option given by the court to seek a clarification in the short order was in fact an intermediary window till the detailed reasons are assigned, so in case there arises any misunderstanding as to the spirit or implementation of the short order before the release of the detailed judgement, the parties may seek a clarification.
Published in Dawn, October 19th, 2024