Qamar Bashir

When Parliament passed the Supreme Court Procedure and Practices Act 2023, analysts, including myself, predicted that the government, if it came to power in a subsequent term, would soon realize the shortsightedness of this move, as it was enacted mainly to curtail the powers of the then-outgoing Chief Justice, Atta Bandial. This act, which was quickly passed by Parliament and endorsed by the President without thorough deliberation, lacked the collective wisdom and broad consultation that are essential for any successful legislation.

The main provision of the newly amended Supreme Court Procedure and Practices (SCPP) Act 2024 is to empower the Chief Justice to select the third member of his choice for the three-member committee responsible for determining the composition of Supreme Court benches. This role is of paramount importance, as it greatly influences the direction any given case will take.

While the current Chief Justice, whom the government believes it has empowered through this amendment, will soon complete his tenure, the next Chief Justice—who is largely perceived as being less favorable to the government—is expected to assume this power. This upcoming Chief Justice is likely to hold office for several years and could leverage this authority to challenge the vested interests of the government, potentially creating significant challenges for them in the future.

Parliament has passed other laws similarly, often drafted hastily and merely rubber-stamped, only for their flaws to become evident, requiring them to be reversed later. A notable example is the decision to replace retired judges with serving judges in the Election Tribunal. The ruling elite eventually recognized the mistake in this amendment and reverted to the original practice of appointing retired judges as presiding officers, highlighting the importance of foresight and careful legislative deliberation.

Governments knew very well that Laws enacted through thorough consultation, debate, and stakeholder engagement tend to be more effective and beneficial in the long term. For example, the Civil Rights Act of 1964 in the US and the Disability Discrimination Act (1995) in the UK underwent extensive deliberations, ensuring they addressed the complexities of societal issues, resulting in enduring positive impacts. Engaging stakeholders and following established procedures enable laws to consider diverse perspectives and prevent unintended consequences.

In contrast, laws passed hastily without due process often face resistance, reversals, and negative outcomes. The Farm Laws in India (2020), enacted without adequate consultation, triggered widespread protests and were eventually repealed. Similarly, the Prohibition laws in the US (1920-1933), passed without understanding societal implications, led to organized crime and corruption, demonstrating the pitfalls of bypassing rigorous scrutiny.

Ultimately, enacting laws through a set procedure ensures public trust, legitimacy, and adaptability. Comprehensive processes, like those behind the Social Security Act (1935) and the Affordable Care Act (2010) in the US, have led to long-lasting, impactful legislation that remains relevant and resilient, proving that deliberate, inclusive law-making yields more successful outcomes.

Contrary to the established principle that enacting or amending laws requires thorough scrutiny to ensure they provide long-term benefits to the general public, the government appears to be enacting laws and amending existing ones hastily, primarily in an attempt to maintain its hold on power. In doing so, they are deviating from established practices and legal norms, particularly the principle that laws should not be applied retrospectively. For instance, the retrospective amendments to the Election Act 2023 in Pakistan seem intended to alter the outcomes of elections conducted under that law, potentially undermining democratic principles and the legitimacy of the electoral process. Previously, election tribunals were required to resolve disputes within a stipulated six-month period. However, recent amendments introduced flexibility, allowing tribunals to seek extensions if cases were complicated or required more time.

The recent amendment to the Supreme Court (Practice and Procedure) Act 2024, signed by President Asif Ali Zardari, expands the Chief Justice of Pakistan’s power to select a judge for the committee overseeing the Supreme Court’s affairs, giving the Chief Justice more control over case assignments. The amendment also mandates that all hearings be recorded, with transcripts made publicly available.  Additionally, a sub-clause limiting the right of appeal was removed.

These amendments, initially seen as advantageous for the government, may soon backfire and cause more harm to the ruling party than to any other institution. The government is likely to confront the Supreme Court over its larger bench verdict, which restored the PTI as a political party and allowed independent candidates to join it. The live hearings and the availability of transcripts to the public are expected to attract significant media attention, potentially exposing inconsistencies in the government’s stance and strengthening the position of opposition parties, particularly the PTI. Moreover, the removal of limitations on the right to appeal may end up benefiting the PTI more than the government itself.

In established democracies like the United Kingdom, United States, and Germany, there is a strong emphasis on the principle of legal certainty, which ensures that laws remain consistent and predictable, especially in matters like elections. Once elections are held under a specific law, subsequent processes—such as seat allocation, party status determination, and legal challenges—typically follow the legal framework in place at the time of the election. This principle ensures fairness, transparency, and respect for the democratic process.

For example, in the US presidential elections, the Electoral College process and state laws governing elections remain fixed and unaltered throughout the election cycle. Any changes to election laws or procedures are implemented prospectively, not retrospectively, to avoid influencing the outcome of elections that have already taken place.

In the case of Pakistan, the government’s retrospective amendments to the Election Act 2023 appear to be an attempt to influence election outcomes and subsequent legal and procedural matters. Such amendments, especially if enacted with the intention of impacting ongoing court cases or the allocation of seats, violate the principles of legal certainty and rule of law. They create a sense of instability and undermine public trust in democratic processes.

Comparatively, established democracies typically avoid retrospective legislation that directly affects election outcomes. For instance, in the UK, the Representation of the People Act (which governs elections) undergoes amendments, but these are always applied to future elections. This ensures that the rules remain consistent throughout an electoral cycle, preventing any manipulation of election results post-facto.

Retrospective changes to election laws, as seen in Pakistan, can be perceived as attempts to manipulate the political landscape for short-term gains. Such practices can have long-term detrimental effects on democratic institutions, as they create an environment where electoral outcomes can be influenced by those in power, rather than reflecting the will of the people. In established democracies, any attempt to alter election laws retroactively would likely face strong resistance from the judiciary, civil society, and opposition parties, as it would be seen as undermining democratic principles.

The use of retrospective amendments to influence election outcomes and related processes, as observed in Pakistan, contrasts sharply with established democratic practices that prioritize legal certainty, fairness, and respect for the democratic process. To maintain the integrity of elections and democratic governance, it is crucial that any amendments to election laws be applied prospectively, ensuring that the rules in place at the time of the election remain the guiding framework for all subsequent actions.

Qamar Bashir

Former Press Secretary to the President

Former Press Minister to the Embassy of Pakistan to France

Former MD, SRBC, CEO, ATV