Legal experts say seats fallen to one party can’t be distributed among others

KARACHI: Legal experts say that reserved seats that would have fallen to one party cannot be distributed among other parties, emphasising that the Election Rules of 2017 explicitly mandate that reserved seats be allocated on the basis of proportionality per their total seats won in the national or provincial assemblies.

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, and the ECP is currently conducting an open hearing into the matter. On Tuesday, the ECP consolidated all the petitions filed by the Sunni Ittehad Council (SIC) regarding the allocation of reserved seats.

With the PPP, PML-N and MQM-P lawyers also joining the ECP hearing on Tuesday, the question now is whether these parties can claim a stake in the reserved seats if the ECP decides against the PTI-SIC.

Talking to The News on Saturday (Feb 24), Barrister Ali Zafar had said: “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.”

Lawyer Akram Khurram, who specialises in election-related laws, agrees with this contention. In a conversation with The News on Tuesday, Khurram says that he sees no reason for the other parties to try and claim the reserved seats, “when Rule 94 of the Election Rules, 2017 is so clear in how the reserved seats are to be allocated: per the seats won by each party in the general election.”

Rule 94 of the Election Rules, 2017 says: “(1) The Commission shall, by notification in the official Gazette, declare the total number of reserved seats won by each political party in the National Assembly and the Provincial Assemblies respectively. (2) The per centum share of each political party shall be worked out with reference to total number of general seats in the National Assembly, or, as the case may be, the respective provincial assembly.”

Khurram says that, although articles 51 and 106 of the constitution also make it quite obvious how the reserved seats are to be allotted, Rule 94 pretty much clears out any pending confusion.

On whether there has ever been a precedent of other parties being allotted ‘extra’ or leftover reserved seats, Khurram says “Not at all. Nothing like that has ever happened before.” Even if the ECP refuses to give these seats to the PTI-SIC, says Akram Khurram, even then “it cannot give these seats to any other party.”

There seems to be little argument here. For PILDAT President Ahmed Bilal Mehboob, “The matter is between the SIC and the ECP and none of the other political parties are relevant at this stage.”

Mehboob says that, while the ECP “can seek assistance of legal and constitutional experts if it likes, it makes no sense to hear the point of view of other political parties”, adding that if the “ECP decides to not allocate seats to the SIC, only then will the question of allocating the remaining reserved seats to other parties arise.”

The argument Mehboob offers for the SIC-PTI getting the reserved seats is that since the Sunni Ittehad Council had not contested the general election “it would be unfair to expect from it to have submitted the priority list of candidates against reserved seats to ECP prior to the election. It will only be fair if the SIC is allowed to submit its priority list and its candidates’ nomination papers now and allocate the proportionate reserved seats to the SIC.”

Why then would the PPP, PML-N and MQM-P try and get a foot in the reserved seats door? Khurram feels that this is just them [the parties] trying to “provide some kind of counter to the SIC plea in the ECP. Otherwise, there really is no confusion here as far as the condition of proportionality goes when it comes to the reserved seats.”

While Supreme Court advocate Hafiz Ehsaan Ahmad Khokhar says that articles 51, 106, and 224 of the constitution read with Section 104 of the Election Act 2017 in conjunction with Rules 92, 93, and 94 of the Election Rules 2017 govern the distribution and allocation of reserved seats, he feels that “only political parties with an assembly presence through general elections are eligible for these reserved seats under the constitutional and Election Act scheme. Concurrently, these political parties have filed their priority list against those reserved seats within the election programme issued under sections 57 and 58 of the Election Act, 2017.”

So what happens if the seats are not allocated to the SIC? Khokhar also offers the same judgment as the others: “If the ECP rejects the PTI-SIC petition for the remaining reserved seats of women and non-Muslims, these seats will remain empty and not be shared among the political parties.” On the PPP and other parties trying to get the reserved seats, Khokhar says that “although these political parties’ current request to be given the remaining reserved seats is political in nature, it is neither legally acceptable nor sustainable, and the ECP will not grant them their request.”