ON May 6, a three-member bench of the Supreme Court suspended the order of the Peshawar High Court which had denied 77 reserved seats to the Sunni Ittehad Council (SIC) and distributed the seats to other political parties in the assemblies instead. The order of the Supreme Court bench resulted in the immediate evaporation of the ruling coalition’s two-thirds majority — at least for the time being. The simple majority of the present dispensation at the federal and provincial levels is, however, not threatened even if the final order of the SC allocates the disputed seats to the SIC.

The question of allocation or otherwise of the reserved seats to the SIC in the assemblies is a very important one which has been raised for the first time and will almost certainly require interpretation of the Constitution and Elections Act, 2017.

At the heart of the controversy is the question whether SIC qualifies for the allocation of the reserved seats as do other political parties such as the PML-N, PPP, JUI-F and MQM, which have been allocated the reserved seats since February 22.

What makes the SIC case different from the other parties is that it had not submitted a priority list of its candidates for the two categories of reserved seats (women and minorities) for each assembly before the general election as required by Section 104 of the Elections Act, 2017. SIC candidates for the reserved seats, therefore, did not submit their nomination papers either. This was the central argument of the ECP when it denied the allocation of reserved seats to SIC in its order of March 1. The ECP had also ruled that the seats denied to SIC would be distributed among other eligible parties in each assembly since these seats could not be kept vacant indefinitely. One member of the ECP, however, didn’t agree that these seats could be allocated to other parties.

The SIC challenged the ECP order in Lahore and Peshawar High Courts. The Peshawar High Court upheld the ECP position in its order of March 14 based on the same argument that the SIC had not fulfilled the requirements of the Elections Act, 2017.

The question of reserved seats will require interpretation of the Constitution and Elections Act, 2017.

Although it has also been argued that the SIC could not be allocated the reserved seats because it did not contest the general election 2024, there is no such provision in the Constitution which bars allocation of reserved seats to a party because it has not contested general election. Similarly, there is no constitutional or legal provision which bars allocation of reserved seats to a party whose parliamentary party comes into being after the general election when independent candidates join it. In fact, the case of a party which did not contest election and its parliamentary party emerging in the assemblies after independent members joined it post-general election, becomes stronger for allocation of reserved seats because it is irrational to expect submission of priority list of candidates and their nomination forms from such a party before the general election.

Natural justice, in such case, demands that the newly emerged parliamentary party should be allocated reserved seats in proportion to its directly elected members and it should be allowed to complete the technical formalities such as the priority list of candidates for reserved seats and their nomination forms after the parliamentary party has come into existence.

Now that the case is to be argued before a larger bench of the SC, not only the fate of 77 seats in the national and three provincial assemblies has to be decided, the interpretation of the Constitution (especially Article 51) and the law (Section 104 of the Elections Act, 2017) will also be eagerly awaited. In addition, the impact of the judgment on some of the important developments that took place in the assemblies while these seats were either vacant or occupied by parties other than the SIC may also be questioned, if SIC gets the reserved seats. For example, the prime minister’s election took place in the National Assembly on March 3, when reserved seats were not allocated to the parties. In case SIC is finally allocated the disputed seats, it may raise questions about the validity of the PM’s election. More important will be the subject of the Senate election which took place on April 9, when these 77 seats were occupied by parties other than SIC. If the SIC is allocated the seats in the final decision of the SC, the Senate election may be questioned by SIC on stronger grounds as the composition of the Senate would change significantly based on the allocation of seats to SIC.

The validity of Rule 94 of the Election Rules, 2017 may also be questioned in the coming SC proceedings as the explanation at the end of Rule 94 denies the allocation of reserved seats to the parties which do not have an election symbol. Although the current case is not directly affected by Rule 94, it may be useful to get the court’s interpretation for the future. Apparently, the election symbol is not relevant in the case of reserved seats and putting this as a condition for qualifying for the reserved seats sounds absurd. It seems that Rule 94 was considered the main obstacle by PTI when it decided not to form its own parliamentary party in the assemblies after the general election.

Had PTI formed its own parliamentary party by inducting all PTI-supported independent members after the election instead of joining SIC, PTI would have arguably been in a stronger position to claim its share of the reserved seats because it had conformed to the law by submitting the priority list of its candidates and the nomination papers before the election, but these were not accepted by ECP. The question of election symbol in the rule — which is at a lower pedestal than the law — could then be contested by PTI in the courts, probably on a stronger footing.

The writer is the president of Pakistan-based think tank, PILDAT.

X: @ABMPildat

Published in Dawn, May 18th, 2024