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 short-sightedness 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 consulta-tion that are essential for any successful legislation. The main provision of the newly amended Su-preme 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 com-position 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 favourable 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 inter-ests 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 recog-nized 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 delibera-tion.
Governments knew very well that Laws enacted through consultation, debate and stakeholder en-gagement 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 delib-erations, ensuring they addressed the complexities of societal issues, resulting in enduring positive impacts. Engaging stakeholders and following established procedures enable laws to consider di-verse perspectives and prevent unintended consequences. In contrast, laws passed hastily without due process often faces resistance, reversals, and negative outcomes. The Farm Laws in India (2020), enacted without adequate consultation, triggered widespread protests and were eventually re-pealed. 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.
Enacting laws through a set procedure ensures public trust, legitimacy, and adaptability. Compre-hensive processes, like those behind the Social Security Act (1935) and the Affordable Care Act (2010) in the US, have led to impactful legislation that remains relevant and resilient, proving that deliberate, inclusive law-making yields successful outcomes. However, the government is hastily en-acting and amending laws primarily to maintain its hold on power, deviating from established prac-tices and legal norms, particularly the principle against retrospective application. The retrospective amendments to the Election Act 2023 in Pakistan seem intended to alter election outcomes, under-mining democratic principles and electoral legitimacy. Previously, election tribunals were required to resolve disputes within six months, but recent amendments allow for extensions if cases are compli-cated or need more time.
The recent amendment to the Supreme Court (Practice and Procedure) Act 2024, signed by Presi-dent Asif Ali Zardari, expands the Chief Justice of Pakistan’s power to select a judge for the commit-tee overseeing the Supreme Court’s affairs, enhancing control over case assignments. The amend-ment also mandates that all hearings be recorded, with publicly available transcripts, and removes a sub-clause limiting the right of appeal. Initially seen as advantageous for the government, these changes may backfire, causing more harm to the ruling party than to other institutions. The govern-ment 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. Live hearings and accessible tran-scripts may attract significant media attention, exposing inconsistencies in the government’s stance and strengthening opposition parties, particularly the PTI. Additionally, the removal of appeal limita-tions may benefit the PTI more than the government.
Retrospective changes to election laws 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 retrospec-tive 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 govern-ance, 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.
—The writer is a former Press Secretary to the President.
