Law students and law graduates in Pakistan are reporting for JURIST on events in that country impacting its legal system. Abu Bakar Khan is a final year law student at University Law College, University of the Punjab. He files this dispatch from Lahore.
All eyes are now fixed on the Supreme Court of Pakistan to decide who will get the reserved seats, a decision pivotal for determining the course of governance and potential constitutional amendments. The Supreme Court reserved its verdict on Tuesday regarding the Sunni Ittehad Council’s (SIC) appeal against the Peshawar High Court’s (PHC) ruling upholding the Election Commission of Pakistan’s (ECP) decision denying them the reserved seats.
Pakistan Tehreek-e-Insaf’s (PTI) issues began when the Election Commission of Pakistan (ECP) revoked their cricket bat symbol on December 22, 2023, due to failure to conduct intra-party elections according to their constitution. Despite the Elections Act 2017 prescribing only fines for such infractions (Section 208(5)), the ECP treated PTI as if it had ceased to exist as a political party. Initially overturned by the Peshawar High Court, this decision was reinstated by the Supreme Court on January 13, 2024. This move, seemingly emphasizing intra-party processes over general elections, not only forced PTI candidates to contest as independents in the February 8, 2024 elections but also raised significant constitutional and procedural concerns regarding the electoral process.
After the elections, PTI-backed independents joined the Sunni Ittehad Council (SIC), a registered political party, to claim reserved seats. However, after accepting that PTI-backed independents could join the SIC, the Election Commission of Pakistan (ECP) rejected SIC’s request for its share of 70 reserved seats in the National Assembly and 156 in the provincial assemblies. The ECP cited that SIC had not contested elections and also did not provide a list of candidates for the reserved seats within the stipulated time. Instead, the ECP redistributed these seats among other parliamentary parties, notably benefiting the PML-N and the PPP.
The rationale for reserved seats aims to ensure representation of underrepresented groups like women and minorities in assemblies, as mandated by Article 51(6)(d) and (e) of the Constitution. The Constitution dictates that a political party should receive reserved seats through a system of proportional representation based on the total number of general seats it secured in the general elections. The proviso to Article 51 states that general seats won by a party also include independent candidates who join such parties within three days. In principle, it would appear undemocratic for political parties to receive reserved seats in excess of or less than their proportional share of general seats.
The allocation of reserved seats has raised significant controversy, particularly evident in the Khyber Pakhtunkhwa Assembly, where PTI-backed independents won 91 seats compared to 19 by all other parties combined. Despite this, the JUI-F, with only seven general seats, received 10 reserved seats for women. Similarly, the PML-N with six general seats, has been granted eight reserved seats, while the PPP, winning four general seats, now holds six reserved seats.
Fundamental to our democratic principles is the belief that decisions made by national and provincial assemblies must reflect the will of the people, as outlined in the Constitution. Upholding this ensures fair representation and electoral balance determined through voting rights. Any disruption to this balance could undermine election outcomes, through a subsequent exercise where the people of the country have no say. Maintaining the integrity of the proportional representation system is crucial for upholding democratic principles and ensuring that assembly compositions accurately reflect voter choices.
The live broadcast of the nine hearings of this proceeding by the 13-member full court bench has been very interesting and has also stirred certain types of controversies regarding the bench. Notably, there is precedent from the Balochistan Awami Party (BAP), which received a reserved seat for women in the KP Assembly despite not contesting in KP or submitting a candidate list prior to the 2018 general elections.. During the proceedings, Justice Minallah stated that it was evident a political party had been excluded due to a misinterpretation of constitutional provisions and the January 13 judgment of the apex court. He added that this would be the potential endorsement of constitutional violations under the guise of necessity.
As the Supreme Court deliberates, it must consider the broader implications beyond mere seat allocation. Despite setbacks, such as leaders’ imprisonment and candidates being barred from campaigning, PTI-backed independents won 92 seats, the largest number in Pakistan’s directly elected National Assembly. The Supreme Court must not limit its focus but examine the entirety of the issue.
Chief Justice of Pakistan should unequivocally dispel rumors of his bias against PTI and clarify that no personal gain is sought through seat allocations to the coalition government. Now, it is imperative for the Supreme Court to uphold the rule of law and democratic principles enshrined in the Constitution. The court must ensure it is not manipulated by unconstitutional forces seeking to bend outcomes to their will. History will judge these decisions with impartiality and scrutiny, and history is a merciless judge.
Update 7/12/2024: The Supreme Court has delivered a verdict with an 8-5 majority in favor of PTI. It has adhered to the broader context that I mentioned in my dispatch. The court decided that PTI is a political party and that the Election Commission misinterpreted an earlier judgment of the Supreme Court. Consequently, PTI is entitled to the reserved seats. This decision is pivotal and in accordance with constitutional principles.
