Reserved seats issue could end up in court

KARACHI: The PTI-Sunni Ittehad Council’s reserved seats plea could easily end up in court, say legal experts and political observers, who add that the election for the PM or speaker slots will not be able to be conducted without a full house in parliament.

While there is a split verdict on whether the ECP should or should not allot the combined PTI-Sunni Ittehad Council parliamentary party its share of the reserved seats, the biggest concern is to not allow parliament to remain incomplete. 

For context, the PTI-affiliated independent candidates had on February 19 announced they were joining the Sunni Ittehad Council (SIC) -- so as not to lose their share of the reserved seats in parliament. The PTI-SIC combine has since applied for the reserved seats quota. While the ECP has awarded reserved seats in the National Assembly and the provincial assemblies and has listed the PTI-affiliated independents as members of the SIC, it has not allotted them the reserved seats share which the ECP has said is a matter “pending before the commission”.

How is the PTI seeing this development? Speaking to The News, PTI leader Barrister Ali Zafar says: “If the ECP does not give us the reserved seats, then [this] could end up in the courts.” The ECP, says Zafar, seems “in a fix” since “it cannot leave the assembly incomplete. You have to fill those seats.” According to Barrister Zafar, “The constitution says that you are only entitled to give seats to a party proportionate to their seats in the assembly. Under the constitution, these seats cannot be given to any other party.”

There is a feeling that the ECP could end up not giving the PTI-SIC their share of the reserved seats. “The ECP will probably do something unconstitutional and give the seats to the other parties -- and then we’ll have to challenge that”, says Zafar who adds that it seems that the ECP “will wait till the last minute to give [its decision]”.

This gap in the reserved seats could potentially open up a lot of complications. For example, how exactly is parliament going to be voting in the speaker or the prime minister without these reserved seats resolved? Zafar says that these positions cannot be voted in by an incomplete parliament. This could also put in jeopardy the Punjab Assembly speaker vote that took place on Saturday -- but without the PTI’s claimed reserved seats. The PA speaker vote is challengeable, per Zafar.

There has been some confusion regarding why the PTI-affiliated independent candidates had to join the Sunni Ittehad Council when they could have formed a ‘parliamentary party’ in the National Assembly. Lawyer Akram Khurram, who specialises in election law, says that this is because Rule 94 of the Election Rules, 2017 defines parties that are eligible to get a reserved seats quota as ‘political parties’ which means a party that has an election symbol. So the PTI independents could have formed a parliamentary party but that would not have allowed them their share of the reserved seats quote -- “hence their joining the Sunni Ittehad Council”.

Khurram argues for the ECP granting the PTI-SIC their reserved seats, elaborating that “Section 104 of the Election Act says that if any party’s list of reserved seats is exhausted, it can provide a new list and the people whose names are added to the new list will be allowed to file their papers etc.” The rational and logical way of looking at this then would be that “if a party whose list has been exhausted can provide a new list then per the spirit of the law if a party hasn’t given any reserved seats list it should be able to provide a list [after the election].”

He too feels that “Per the trend of the past few months, it looks like the ECP will not give these seats [to the PTI], and this will go to court.” Essentially, says Khurram, the only people who will be most affected by this whole situation will be those the reserved seats are supposed to represent: “women and minorities who are already vulnerable communities in Pakistan”.

Not every legal expert is on this page though. According to constitutional expert and Supreme Court attorney Hafiz Ehsaan Ahmad Khokhar, a political party may, “Under Article 51 of the constitution, add or increase the number of names through a new list in continuation of the one that was previously filed, if the list it had previously submitted before the election is depleted. However, it is not permitted to file a new list after the election programme or the general election.”

Khokhar adds that “if significant independent candidates are constitutionally prohibited from joining a political party, as is the case in the current state of affairs, the reserved seats that remain after other political parties have been allotted proportionate representation will not be allotted to other political parties and will stay vacant.” He disagrees that the ECP is under any legal or constitutional obligation to provide such a political party reserved seats.

It must be remembered that this situation is not wholly unique. After the 2018 elections, the PTI had not submitted its list for minorities for the Punjab Assembly and was subsequently awarded its reserved seat after the election. And in 2019, BAP got a reserved seat for women in Khyber Pakhtunkhwa after the post-merger election.

Saying that this issue is “subject to interpretation”, PILDAT President Ahmed Bilal Mehboob also offers that the matter will “ultimately be resolved in the Supreme Court.” In this context, he says that “the matter should be interpreted broadly and not narrowly on technical grounds. I think the PTI should have been allocated reserved seats if it had chosen to form its parliamentary party in each assembly and the party had held its intraparty election. But that stage is past and if the SIC has not contested the general election it should be allowed to submit a priority list of reserved seats now and they should be allocated reserved seats.”

Talking to Geo’s Shahzad Iqbal on ‘Naya Pakistan’ on Saturday night, former secretary of the Election Commission of Pakistan Kanwar Dilshad said that the ECP will likely be mulling over whether it should see the Sunni Ittehad Council as a new party now that it has been joined in by PTI-affiliated independents. According to him, “going by precedent, the BAP example shows us that the ECP has previously allotted reserved seats in such a case.”

Journalist Majid Nizami summarises the situation: “I think the PTI will definitely have to move the courts in this matter. The ECP itself has in its notifications regarding reserved seats in the National Assembly and the provincial assemblies referred to some of these seats as ‘pending’ so it does seem to realise the sensitive nature of the issue at hand.”