The Speaker of the National Assembly asserts that the Pakistan Tehreek-e-Insaf (PTI) party is not entitled to reserved seats following recent amendments to the Election Act of 2017.
However, the Supreme Court has ruled that Parliament cannot create either prospective or retrospective laws that infringe upon or limit any fundamental rights enshrined in the Constitution.
"Neither prospective nor retrospective laws can be enacted to infringe upon or abridge any fundamental rights guaranteed by Articles 9 to 28 of the Constitution or in violation of any other constitutional provisions," stated a 41-page judgment authored by Justice Syed Mansoor Ali Shah.
Justice Shah led a three-member bench that examined the constitutionality of amendments made to Section 65B of the Income Tax Ordinance, 2001 (ITO) by the Finance Act of 2019.
In a majority decision of 8 to 5 on July 12, the Supreme Court granted the PTI the right to claim reserved seats in the National Assembly, allowing 41 lawmakers who initially ran as independents and later joined the Sunni Ittehad Council (SIC) to affiliate with the PTI after submitting party affiliation certificates.
In response to this ruling, the ruling coalition made amendments to the electoral law to prevent such party changes. The Speaker wrote to the Election Commission of Pakistan (ECP), stating that the Supreme Court's decision could not be implemented due to the amendments to the Election Act of 2017.
However, the Supreme Court's order emphasized that when a new law is enacted regarding certain matters, it is presumed to apply to future situations without altering the nature of past transactions conducted under the previous law.
"This principle is encapsulated in the maxim lex prospicit non respicit—law looks forward, not backward. A retrospective law is an exception to this general principle; thus, courts typically interpret laws with a presumption favoring the notion that laws are meant to govern future affairs rather than affect past transactions.
"Any exceptions allowing for retrospective effect are interpreted strictly, as are other exceptions to general principles. This presumption stems from the principle of fairness, as altering accrued rights and obligations retrospectively is often viewed as unjust.
"Since the legislature is not expected to act unfairly, it is crucial to examine any law appearing to have such an effect closely, ensuring it truly reflects the legislature's intent.
"Therefore, the legislature is presumed not to have intended to change the law relevant to accrued rights and obligations or past events unless a clear contrary intention is expressed.
"The strength of this presumption varies based on the degree of potential unfairness—the greater the unfairness, the more explicit the legislature's intent must be," the judgment states.
Some legal experts contend that the amendments to the Election Act of 2017 retroactively strip the PTI of its reserved seats, questioning how simple legislation can influence the rights of any political party in such a manner.
A former law officer commented on Speaker Ayaz Sadiq's letter, stating that the July 12 judgment interpreting Article 51 cannot be overturned by mere legislation.
"The Speaker has exceeded his mandate," he added.
He also noted that the majority of the Supreme Court judges provided clarification regarding the implementation of the July 12 order following the enactment of recent amendments to the Election Act of 2017.
Former Additional Attorney General Tariq Mahmood Khokhar criticized the Speaker, stating, "We have a purported Speaker who is not non-partisan."
"He is a Form-47 usurper. He has failed to uphold the sanctity of Parliament and its members. His ruling today encourages a serial contemnor to defy the Supreme Court order regarding reserved seats, which contradicts the principles of separation of powers, rule of law, and parliamentary democracy.
"Members of the parliamentary opposition should initiate a motion of no confidence against the chair," he argued.
Supreme Court Judgment
The court highlighted that Article 142 indicates that when the Constitution itself imposes restrictions on legislative power in a specific manner or prescribes a particular method for exercising that power, then the legislative authority granted by this Article cannot be exercised in a prohibited manner or can only be exercised in the manner specified by the Constitution.
"Since Article 8 of the Constitution restricts the legislative powers of Parliament and Provincial Assemblies from enacting laws that infringe upon or abridge the rights conferred by Articles 9 to 28, neither Parliament nor Provincial Assemblies can exercise their legislative powers in a manner prohibited by this article.
"Article 12 prohibits the enactment of retrospective laws concerning criminal liabilities, except for acts of abrogation or subversion of the Constitution. Therefore, aside from this specific exception, Parliament and Provincial Assemblies cannot create criminal laws with retrospective effect; however, there are no restrictions on their legislative powers to enact civil laws with retrospective effect."
The court clarified that the Constitution prohibits retrospective legislation concerning criminal liabilities, but not civil rights and obligations.
"There is no rule stating that even if a legislature attempts to remove a vested right, the courts must deem such legislation ineffective or strike it down on the basis that it has retrospectively taken away a vested right," the court stated.
Meanwhile, a meeting of a three-member judges' committee, established under the Practice and Procedure Act, 2023, has been postponed. According to sources, the agenda included review petitions concerning the decision on Article 63(A) and petitions related to the audio leak case. However, the meeting has been deferred.