ISLAMABAD: The Elec­tion Commission of Pakistan (ECP) on Thursday deferred the notification of Pakistan Tehreek-i-Insaf (PTI) members of the Punjab Assembly against the five reserved seats that fell vacant following the de-seating of 25 of the party’s MPAs over defection, until the by-polls on the 20 general seats scheduled for July 17.

“...being a case of first impression, we have come to the conclusion that the scheme of proportional representation provided in the Constitution is mandatory for filling of vacant reserved seats for women and non-Muslims. Keeping in view the spirit of Article 106 of the Constitution we deem it appropriate to defer the filling of vacant reserved seats till the outcome of by-elections on 20 general seats in the provincial assembly of Punjab,” held a five-member bench of the ECP headed by Chief Election Commissioner Sikandar Sultan Raja.

The order said individual reserved seat(s) falling vacant on the account of death, resignation or disqualification of a member(s) are filled by the next member as per the party list. The subject case is of first impression because 20 members from general seats of a parliamentary party were disqualified and de-seated under Article 63-A of the Constitution, which has sufficiently reduced the strength of general seats of that party in the Punjab Assembly.

The order points out that it has been held by the Supreme Court on many occasions that redundancy cannot be attributed to the legislature nor are constitutional provisions to be interpreted to render any of the provisions redundant or ineffective.

In the backdrop of the recent de-seating of 25 PTI lawmakers of the Punjab Assembly, including five members of the reserved seats, on the grounds of defection under Article 63-A of the Constitution, a controversy arose as to whether the vacant reserved seats shall be filled from the party list or on the basis of changed strength of the political parties in the assembly.

Appearing before the ECP, PTI counsel Faisal Fareed contended that according to Article 106(3)(c) of the Constitution, the members to fill the seats reserved for women and non-Muslims allocated to a province under Clause (1) of Article 106 shall be elected in accordance with law through proportional representation system of political parties and their lists of candidates on the basis of the general seats secured by each party in the assembly.

He also referred to Article 224(6) and submitted that when a seat reserved for women or non-Muslims in the National Assembly or a provincial assembly falls vacant, it shall be filled by the next person in order of precedence from the list of candidates to be submitted to the ECP by the party whose member has vacated the seat. Once the reserved seats are allocated on the basis of general seats a party has won, it cannot be altered, changed or amended later, he contended.

Expanding his arguments, Mr Fareed submitted that Section 104 of the Elections Act 2017 regulates the procedure for election and filling of vacant reserved seats. It is the rule of interpretation that if any provision of the subordinate legislation is in the same language as provided in the main law, it shall be considered however, if the provision of a subordinate legislation is not in consonance with the language of the main law, it shall not be considered, and ignored.

He further argued that in case of any lacuna in the law or Constitution, it cannot be filled by courts or the commission, as the ECP is an executive body and not a tribunal or a court, and its main duty is to perform its functions and issue a notification as provided in the Constitution and law to fill the vacant reserved seats. He submitted that it is the job of parliament to legislate and amend the law.

Attorney General for Pakistan Ashtar Ausaf Ali said the members elected for reserved seats also have some criteria for their selection and addition to the party list; they have to possess certain qualifications. He argued that filling of reserved seats and proportional representation are interlinked. If the number of general seats decreases, the representation would be disproportionate. He added that in the instant matter, the PTI had lost 20 general seats in the Punjab Assembly and automatically lost the proportional representation required for getting reserved seats in the House.

In his opinion, he said, the solution is to conduct by-elections on 20 vacant general seats and then calculate the quota of reserved seats on the basis of proportional representation of the parties in the assembly.

Foreign Funding case

Meanwhile, the PTI financial expert on Thursday questioned the validity of $3.3 million dollars remitted to Pakistan from two US-based Limited Liability Companies. The companies were registered in the US under the signatures of PTI chairman Imran Khan and used as an agent to collect donations in the US.

The chief election commissioner repeatedly asked the PTI financial expert to focus on the summary of financial transactions, adding that if the ECP needed further assistance on specific transactions it would request the PTI to provide it. Finally, it was agreed that the PTI would submit further details, if any, in the next five days.

Published in Dawn, June 3rd, 2022