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: Legal experts see NA Speaker Ayaz Sadiq’s letter as an attempt to justify the ECP’s non-compliance with the Supreme Court’s order. However, they warn that failing to implement the court’s rulings could lead to contempt charges. They also point out that the NA speaker has no legal power to direct the ECP to act in a manner contrary to the directions of the Supreme Court, whose orders are binding on the ECP.

On Thursday, Speaker of the National Assembly Sardar Ayaz Sadiq wrote a letter to the Election Commission of Pakistan, stating that the Supreme Court’s judgment on reserved seats “cannot be implemented under the Amended Election Act, 2017”. This comes just a couple of days after the government’s failed bid to bring about a constitutional amendment package.

Last week, eight judges of the Supreme Court issued a written order or clarification criticizing the ECP for allegedly trying to create confusion about the SC’s July 12 ruling that declared the PTI eligible for reserved seats in parliament, saying that the ECP’s request for clarification was an attempt to delay implementing the decision. The ECP had previously notified 39 out of 80 PTI members of the National Assembly and sought further guidance regarding other lawmakers. The July 12 ruling, passed by an 8-5 majority, had overturned the Peshawar High Court’s decision that had denied reserved seats to the PTI.

The Election Act (Amendment) Act passed in August this year restricted independent lawmakers from joining political parties after a specified period. The law amended Sections 66 and 104 of the Election Act, 2017, ensuring candidates remain independent if they have not declared party affiliation before receiving an election symbol. Additionally, the law states that if a political party fails to submit its list for reserved seats within the prescribed period, it will lose eligibility for those seats.

When the government had proposed the Election Act amendment, The News had reached out to legal and constitutional experts to see whether the law could undo the Supreme Court’s July 12 verdict. At the time, legal experts had said the amendments would likely end up in court, and there was divided opinion on whether the amendments had a retrospective effect.

Speaking to The News about Speaker Sadiq’s letter, Barrister Rida Hosain brings up the September 14 clarification order of the eight Supreme Court judges, saying that the court “has made clear that its verdict is on a constitutional plane, and an interpretation of the constitutional provisions. Parliament cannot undo the court’s interpretation of the Constitution through ordinary legislation. 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.”