LAHORE: The Lahore High Court (LHC) has ruled that when a reserved seat becomes vacant after a lawmaker’s disqualification, it shall be filled by the next person in order of precedence from the list of candidates of the political party whose member vacates the seat.

Justice Shahid Waheed made this ruling in his detailed verdict issued on the petitions of Pakistan Tehreek-i-Insaf (PTI) challenging a decision of the Election Commission of Pakistan (ECP) wherein the matter of the notification of MPAs against five reserved seats was deferred until the by-polls on 20 general seats of Punjab Assembly scheduled for July 17.

In a short order issued on June 27, the judge ordered the ECP to notify PTI members on the five reserved seats that fell vacant after the disqualification of 25 MPAs who defec­ted and voted for Hamza Shehbaz in the chief minister’s election.

In the detailed verdict released on Tuesday, Justice Waheed explained that it could be easily gleaned from the ECP’s June 2 order that the commission agreed with the PML-N’s argument on the ground that the Constitution did not prohibit the recalculation of quota at a subsequent stage due to an increase or decrease of a political party in the Assembly.

Says seat vacant after lawmaker’s disqualification shall be filled by the next person in order of precedence from the same party’s list of candidates

“This answer, in my view, is not consistent with the letter and spirit of the Constitution, particularly with its substantive provisions of Articles 106(3c) and 224(6),” the judge said.

He said it was a putative principle that public bodies and private persons are both subject to the rule of law.

“For private persons, the rule is that everything that is not forbidden is allowed. But for public bodies like the ECP, the rule is the opposite. It is that everything that is not allowed by the substantive provisions of the law and the Constitution is forbidden,” he explained.

The judge noted that after a conjoint reading of Article 106(3)(c) and Article 224(6), it emerged that they suggested three things: firstly, calculation of quota for the reserved seats shall be made based on the total number of general seats secured by each political party in the general election; secondly, the members to fill reserved seats shall be elected through proportional representation system of political parties’ lists of candidates; and thirdly, when a reserved seat in a provincial assembly falls vacant, on account of death, resignation or disqualification of a member, it shall be filled by the next person in order of precedence from the party list of the candidates.

He observed that the mention of these three things in clear terms in the Constitution necessarily implied that due to subsequent variation in the strength of the political party on the general seats, the recount or recalculation of quota at any later stage is excluded.

The judge said the ECP was of the opinion, supported by the federal and provincial lawyers, that if mass-scale de-seating reduced the strength of a political party in general seats, it necessarily required a recount of its quota of reserved seats.

Disagreeing with this opinion, Justice Waheed said a perusal of the impugned order gave the impression that the ECP while returning its findings did not notice the implication of the expression “whose member has vacated such seat” mentioned in Article 224(6) of the Constitution and through its interpretation made it redundant.

“This was highly improper and against the rule of harmony,” he said.

The judge said it could be safely concluded that when a reserved seat becomes vacant on account of any kind of disqualifications, it shall be filled in accordance with the procedure laid down in Article 224(6) of the Constitution.

Published in Dawn, July 6th, 2022