Edited in Prisma app with Daryl Feril

PTI-SIC vs ECP: The battle for reserved seats

Can the electorate be punished by imposing upon them a legislature that does not represent them?
Published June 6, 2024

At the heart of our democracy lies the basic tenet that the will of the people be reflected in the national and provincial assemblies. The composition of these assemblies relies in part on the quantum of reserved seats allotted to each party, which is currently being contested in the Supreme Court.

The question before us is thus: will the government and its allies be able to secure reserved seats in a manner disproportionate to their general seats? If that does happen, the ruling alliance will be handed the requisite numbers to amend the Constitution.

The preamble of the Constitution reads: “We, the people of Pakistan … do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.” Unlike the 1962 one-man document, the 1973 Constitution was adopted by the people. If it is to be altered, the people have said it can only be done by a clear and overwhelming mandate: a two-thirds majority of both Houses.

In recent weeks, the incumbent government has indicated that it is considering various constitutional amendments. What is, therefore, at stake before the apex court is not just the matter of reserved seats, but the current dispensations’s ability to tinker with the Constitution.

The rationale for reserved seats is to give underrepresented groups such as women and religious minorities representation in the assemblies. The Constitution dictates that a political party should get reserved seats through a system of proportional representation based on the total number of general seats it was able to secure in the general elections. In principle, it would appear to be undemocratic for political parties to get reserved seats in excess of (or less than) their proportional strength of general seats. This is precisely the matter before the apex court.

But how did we get here?

ECP’s disastrous actions

Article 218 of the Constitution binds the Election Commission of Pakistan (ECP) to ensure elections are conducted honestly, justly, and fairly. But the electoral watchdog’s actions, over the past one year at least, have cast a shadow of doubt over its impartiality.

Last year, when the apex court, led by former chief justice of Pakistan Umar Ata Bandial, ordered provincial polls in Punjab and Khyber Pakhtunkhwa, every excuse under the sun was adopted to delay elections — lack of funds, security situation, simultaneous provincial and national elections. When the SC ordered elections anyway, the court was brazenly defied. As a result, two provinces were governed by caretaker governments for over a year — which was well over their mandate.

In the case of announcing the date for general elections, the ECP incorrectly claimed authority to announce it and refused to meet former president Dr Arif Alvi. This resulted in further unnecessary litigation, and ultimately, a court intervention was required to settle the election date.

In December 2023, the PTI filed a petition claiming its candidates were being “arrested, harassed and their nomination papers are being snatched from them which is a blatant abuse of a fair and free electoral process”. The top court ordered the ECP to resolve the grievances on an urgent basis and ensure the electoral process remained transparent.

However, weeks before the 2024 elections, the ECP deprived the PTI of its election symbol over failure to hold intra-party polls. The watchdog’s decision was upheld by the SC. Consequently, the ECP acted as if the PTI had ceased to exist as a political party.

The Constitution and law are clear: the loss of a symbol does not mean the dissolution of a political party. And yet, the ECP effectively proceeded on the basis that the PTI no longer existed as a political party.

When the caretaker government suspended cellular services on Feb 8, ECP representatives vehemently defended the shutdown, instead of independently questioning the need for disrupting communications on the day of general elections.

The ECP’s conduct speaks for itself. In the suo moto case regarding the letter by the six Islamabad High Court judges, and the request for live streaming the NAB amendments case — voices from within the Supreme Court are now observing that courts cannot bury their heads in the sand and ignore substantive realities. Doing so risks undermining public confidence in the judicial system.

Bat symbol ruling

During the hearings in the reserved seats case, significant time was spent discussing the bat symbol judgment and its impact. The crux of this judgment was that the PTI failed to hold intra-party elections, rendering itself ineligible to obtain an election symbol.

The decision disenfranchised millions of ordinary voters — particularly in a nation where election symbols remain critical for identifying a political party. Effectively, intra-party elections were prioritised over general elections.

The most curious part of this judgment was that the ECP accepted that the PTI conducted intra-party elections. It found, however, that there were discrepancies in the way the internal polls were conducted but the very occurrence itself was not disputed.

The three-member bench led by CJP Qazi Faez Isa went even further than the ECP and found that the PTI had never conducted intra-party elections at all. In any case, the only express penalty for failing to hold intra-party elections is a fine, according to Section 208(5) of the Elections Act 2017.

Regardless, the bat symbol judgment remains final and binding unless overturned in review.

The reserved seats matter is inextricably linked with the bat symbol judgment. It is the SC ruling that paved the way for the ECP to declare that PTI candidates were ineligible to contest the general elections as party candidates. It is this judgment that formed the foundation of the ECP’s decision to deny PTI candidates the right to contest as a member of their party and effectively required them to contest as independents.

PTI-backed independents contested the election with individual symbols — ranging from vegetables to kitchen and household items. To claim reserved seats, PTI-backed independents joined the Sunni Ittehad Council (SIC) — a registered political party with an electoral symbol.

After accepting that PTI-backed independents could join the SIC, the election commission held that since the SIC did not contest elections, it was not entitled to reserved seats. Instead, these reserved seats were distributed among other political parties including the PML-N, PPP, and MQM.

The ECP’s denial of reserved seats to the SIC and grant of such reserved seats to other political parties was upheld by the Peshawar High Court (PHC). The appeal is now before the SC.

‘A series of errors’

As the controversy played out, various positions were taken during the litigation, and at the heart of them lies the interpretation of Article 51 of the Constitution.

The ECP claims reserved seats can only be allocated to a political party that has contested the elections. The PHC accepted this position and found that “reserved seats belong to a party which has contested the election”. Essentially, the reasoning is that since the SIC did not contest elections, it cannot claim reserved seats.

The next aspect of ECP’s position is that for entitlement to reserved seats, a political party must have secured a general seat — excluding independents that may join it. The PHC accepted this position and held, “any party, which does not have any general seat in the National Assembly; prior to being joined by independent candidates, cannot lay claim to a share in the reserved seats”.

The ECP asserts that since the SIC did not hold any general seats before the PTI-backed independents joined it, no reserved seats can be claimed.

On the distribution of such seats to other political parties, the court again accepted the electoral watchdog’s position and held that “it was never contemplated by the framers of the Constitution on account of the eventuality, as before us, any seat of the National Assembly or the Provincial Assemblies shall be vacant”.

The ECP’s position is that while the SIC was not entitled to reserved seats, the same could not be left empty. Hence, they were distributed to other political parties.

On the interpretation of Article 51, as Justice Munib Akhtar observed during the hearings, there are two elements: positive and negative. The “positive” element commands that a political party must get reserved seats based on its proportional strength of general seats. The “negative” is that no political party can obtain reserved seats above its proportional strength of general seats.

The democratic foundation of this is that the distribution of reserved seats corresponds to the proportion of general seats secured by a political party. Nothing more, nothing less.

Those supporting the SIC’s claim refer to the proviso to Article 51(6) which expressly states that for purposes of calculating the quota of reserved seats, “the total number of general seats won by a political party shall include the independent returned candidate or candidates who may duly join such political party.” Per the proviso, independent candidates that join a political party are to be included to determine entitlement to reserved seats.

The reason Article 51 uses the phrase “political party” instead of “parliamentary party” is that at this stage, a parliamentary party has not come into existence. A parliamentary party can only come into existence at a future time, which is after members take oath in the assemblies. A political party that has not won a single general seat in the elections can evolve into a “parliamentary party” if winning independents subsequently join it.

Moreover, those leaning towards the SIC’s position cite that the Election Act 2017 does not expressly provide any penalty for non-submission of party lists for reserved seats. In its wisdom, the legislature has not included any penalty for delay in the submission of party lists. Delay in submission of party lists cannot be used as a ground to deny reserved seats.

In fact, Section 104(4) of the Election Act 2017 states, “where a party list for reserved seats is exhausted, a political party may submit a new name”. This reinforces that reserved seats are non-transferable. If a party’s list is exhausted, it is that very political party which is entitled to submit a new list. The relevant right or entitlement rests with the political party.

A final novel proposition that has been canvassed is that the SC should declare that the ECP wrongly required PTI candidates to contest as independents. PTI-backed independents (who have joined SIC) should be allowed to join a new party (i.e. the PTI), and reserved seats should be allocated to the PTI. After all, it is the PTI that effectively stands behind the SIC.

This course of action will necessitate a series of “undoings” by the apex court. The “series of errors” from Jan 13 onwards would have to be undone. Justice Akhtar observed during the hearing: whether reserved seats can be denied to those who have now taken “shelter” behind the SIC due to the cascading series of errors of law by the ECP.

This case is not about the strategy PTI should have adopted. This case is about the rights of political parties and ultimately about the rights of voters to ensure that the National Assembly reflects the will of the people as contemplated by the Constitution. There can be different views on what the PTI should have done strategically.

But can the electorate be punished by imposing on them an unrepresentative legislature as a consequence?

Article 17 of the Constitution

Article 17(2) of the Constitution states, “Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law …”

Courts have interpreted Article 17 in the widest possible manner — the right to form a political party includes the right to function as a political party.

In Benazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416), during the martial law regime of Gen Ziaul Haq, various amendments were made to the Political Parties Act 1962. Among other requirements, as per Section 3-B, political parties were required to register with the election commission. If registration requirements were not complied with, a political party would be ineligible to contest elections.

In the case of Benazir Bhutto, a military dictator imposed arbitrary and strict restrictions on political parties to try and bring certain political parties down. But Benazir challenged these amendments.

Eventually, the SC declared Section 3-B void and held, “Article 17(2) of the Constitution not only guarantees the right to form or be a member of a political party but also to operate as a political party. Again, the forming of a political party necessarily implies the carrying on of all its activities as otherwise the formation itself would be of no consequence. In other words, the functioning is implicit in the formation of the party.”

It is the function and right of a political party to obtain its share of reserved seats and participate in elections.

What next?

It was democracy that led to the creation of Pakistan. The preamble of our Constitution recognises, “faithful to the declaration made by the Founder … that Pakistan would be a democratic state … dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny”.

At all times, the assemblies should manifest the people’s voice. How that “voice” is determined is set out in the Constitution. Reserved seats for women and minorities is a system of positive discrimination contemplated by the Constitution to ensure representation of these underrepresented groups. The intent appears to be to provide for such representation while maintaining the balance that has been determined by the electorate through the exercise of their right to vote.

Disturbing that balance would upset the election results through a subsequent exercise in which the electorate has no say.

In the fight for reserved seats, as the Supreme Court is weighing arguments presented by ECP and the ruling alliance on one side, and the SIC/PTI on the other side — constitutional interpretation, fundamental rights, and basic democratic principles are all at play.