NA speaker's letter to ECP can't override Supreme Court orders, say legal experts

• Parliament "can't overturn" court's interpretation of Constitution.
• Ahmad calls this catch-22 situation for Election Commission.
• Orders of Supreme Court are binding upon ECP, says Darugar.

KARACHI: Jurists believe National Assembly Speaker Ayaz Sadiq's letter is an effort to defend the Election Commission of Pakistan's (ECP) non-compliance with the Supreme Court's ruling, pertaining to the reserved seats verdict.

Nevertheless, they caution that not implementing the court's orders could result in charges of court contempt. They further note that the Supreme Court's rulings are binding on the ECP, and the NA speaker lacks the legal authority to command the ECP to operate in a way that deviates from those directives.

The Supreme Court's ruling on reserved seats "cannot be implemented under the Amended Election Act, 2017". NA Speaker Sadiq said in a letter to the ECP on Thursday. He wrote about this two days after the government's abortive attempt to introduce a package of constitutional amendments in the parliament.

Eight Supreme Court judges criticised the ECP in a written order or clarification last week for allegedly attempting to create ambiguity regarding the July 12 ruling of the apex court, which declared the PTI eligible for reserved seats in the lower house of parliament. They said that the election commission's request for clarification was an attempt to postpone the implementation of the ruling.

39 of the 80 PTI MNAs had earlier been notified by the ECP, while the election body had also sought further guidance about other legislators. The Peshawar High Court's decision to deny the PTI reserved seats was overturned by an 8-5 majority judgement on July 12.

After a predetermined period, independent legislators were prohibited from joining political parties by the Election Act (Amendment) Act, which was passed in August 2024. The bill revised Sections 66 and 104 of the Election Act, 2017 to ensure that candidates maintain their independent status, if they have not announced their party affiliation prior to being given an election symbol.

Furthermore, the law states that a political party will forfeit its eligibility for reserved seats if it does not submit its list of candidates within the allotted time.

The News had talked to legal and constitutional experts, when the government proposed the Election Act amendment, to see whether it could overturn the Supreme Court's July 12 decision. The experts had then predicted that the amendments would probably end up in court, while they had disagreement about whether the amendments could be applied retroactively.

Talking to The News on the NA speaker’s letter, Barrister Rida Hosain highlighted the Supreme Court's clarification ruling of September 14, noting that the court "has made clear that its verdict is on a constitutional plane, and an interpretation of the constitutional provisions”.

"The court's interpretation of the Constitution cannot be overturned by the parliament through regular legislation," she said.

"The Supreme Court has further clarified that all MNAs who submitted a party affiliation certificate are ‘deemed’ to be PTI candidates. The ECP’s inaction has no substantive effect and is simply a ministerial act. In the eyes of the law, all candidates who submitted their certificates belong to the PTI."

Hosain explains also that the apex court had in its clarification said that the ECP’s failure to perform its binding obligation “would have consequences”, adding that still “a binding court order continues to be defied. Beyond contempt of court, this signifies a constitutional breakdown.”

Lawyer Ali Javed Darugar sees the letter as “an attempt to provide the ECP with a justification to not comply with the order of the Supreme Court and sugarcoat what is happening by making it come across as a complex constitutional clash amongst coequals”.

He adds that ultimately, however, “judges are reliant upon other institutions, especially the executive, to get their orders enforced. What gets enforced, and how much the majority judges feel they can push for enforcement, has unfortunately become a predominantly political rather than a legal question.”

So where does that leave matters then? “The orders of the Supreme Court are binding upon the ECP, notwithstanding what the ECP thinks of the legal merits of such orders”, says Darugar. In this respect, he explains, the speaker of the NA “has no legal power to direct the ECP to act in a manner contrary to the directions of the Supreme Court”.

Darugar quotes American Supreme Court Justice Robert Jackson’s famous quip to get his point across: “We are not final because we are infallible, but we are infallible only because we are final.”

Put simply, says Darugar, the speaker “is not a coequal of the Supreme Court when it comes to the interpretation of the law.”

In fact, he recalls that the PTI had argued something similar when its speaker initially attempted to dismiss the vote of no-confidence against the then PM Imran Khan by invoking Article 6: “Their argument that actions of the speaker were not justiciable was promptly rejected.”

What can the Supreme Court do if the ECP refuses to implement its order? Ali Darugar says the court can directly initiate contempt proceedings “against individuals that are not implementing its orders which can result in jail time for said individuals. Under Article 190 of the Constitution, executive authorities are bound to act in aid of the Supreme Court.”

Supreme Court advocate Hafiz Ehsaan Ahmad calls this a “catch-22 situation for the ECP.” According to him, “On the one side, there is the September 14 order of the Supreme Court and on the other side, there are two amendments now made by parliament in the Election Act 2017 with retrospective effect.”

He feels the best way out for the ECP would be to “immediately approach the Supreme Court and share all legal developments including recent amendments and request the court for a full court hearing by those judges who earlier heard this allocation of reserved seats”. This, he adds, is now necessary so that the country can “come out from political and constitutional crises as far as allocation of reserved seats is concerned.”

Hosain ends with the reminder that the “Election Act amendments also apply retrospectively. The substantive rights of a political party cannot be adversely impacted by obligations that did not exist at the time of elections. A political party cannot be asked to comply with requirements that did not exist at the time of elections.”