ISLAMABAD: The Pakistan Tehreek-e-Insaf (PTI) prayed the Supreme Court to declare the Elections (Second Amendment) Act, 2024, ultra vires the constitution in its entirety and of no legal effect.
It further prayed that during the pendency of the instant petition, the Election Commission of Pakistan (ECP) be restrained from allocating to any other political party reserved seats for women and non-Muslims in the National and the Provincial Assemblies that are proportionate to the entitlement of the PTI in term of the majority judgment of the Supreme Court.
Such reserved seats may be directed to be allowed to the PTI and its candidates whose names are contained in the lists filed before the ECP in accordance with the 12th July judgment.
Chairman PTI Barrister Gohar Ali on Wednesday filed a petition under Article 184(3) of the Constitution against the changes made in the Election Act, 2017, regarding the reserved seats. He cited the federation through the Ministry of Law and Justice and the ECP as respondents.
Barrister Gohar submitted that the attempt has been made to give amendment retrospective effect, which is nonest, violative of the constitutional scheme and an assault on the democratic order. Past and closed transactions that have taken place in terms of the constitution and the Election Act, 2017 prior to the enactment of the impugned amendment cannot be undone through the deemed retrospectively purportedly assigned to the Act.
“Actions taken by the people and their chosen representative in exercise of their constitutional rights cannot be undone by the parliament through legislation. Such legislation suffers from malice in law.”
The PTI chairman contended that Section 2 of the impugned Act, whereby, Section 66 of the Elections Act is sought to be amended is ultra vires the constitution. The relevant provisions of the constitution including Articles 17, 51 and 106 stand duly interpreted by the Supreme Court through its verdict on 12-07-2024.
The Section 2 of the impugned Act cannot be given retrospective effect. The provisions of Section 2 of the impugned Act have no applicability with regard to the general elections for the National Assembly and the Provincial Assemblies held on 08-02-2024, and the subsequent election for the reserved seats for women and non-Muslims in the National and the Provincial Assemblies.
He submitted that the Supreme Court through its judgment dated 12-07-2024 has taken into account the gross violations of Article 17 and the fundamental rights of the people to participate in the democratic process by voting for the political parties of their choice and for the candidates contesting under the symbol of the political party of which they are members and candidates.
Gohar said that the Supreme Court has noted that the general elections of 08-02-24 were marred by a series of decisions and actions that were all intended to prevent the PTI and its candidates from contesting the general elections as a political party and as candidates of the PTI.
He said the Supreme Court through judgment decided to pierce the fraud enacted by the ECP in order to recognise as matter of constitutional compulsion flowing out of Article 17 and other provisions of the constitution. The Court exercised its constitutional jurisdiction to do complete justice to the people of Pakistan by enabling the recognition of the returned candidates of the PTI by directing that such candidates be recognised as the candidates of the PTI if they were to file a statement duly signed and notarised stating their candidature on behalf of the PTI and such statement being accepted/confirmed by the PTI. The Supreme Court correctly held that the constitutional entitlement of the people of Pakistan to vote for and elect their representatives on account of their affiliation to a political party (PTI), which could not have been denied by the ECP for any reason whatsoever.
Gohar said that Section 2 of the impugned Act is a facile attempt to deny to the people their constitutional rights that are protected by the constitution and recognized the Supreme Court through its judgment dated 12-07-24. Consequently, Section 2 is a nullity in the eye of the law and of no legal effect whatsoever.
It is clear that neither Article 51 nor Article 106 of the Constitution stipulate a rigid timeframe for the submission of lists of candidates for reserved seats. In particular, there is no constitutional requirement that submission of lists of candidates for reserved seats must be made prior to the date of the general election, he added.
Copyright Business Recorder, 2024