ECP allocates reserved seats claimed by SIC to other parties

ISLAMABAD: In a major setback to the Pakistan Tehreek-e-Insaf (PTI), the Election Commission of Pakistan (ECP) Monday rejected the plea of its new ‘identity’ Sunni Ittehad Council for allocation of reserved seats in the National Assembly and provincial legislatures.

A five-member full bench of the Commission had reserved last week its judgment on the SIC plea and at least six other related petitions. Prior to the issuance of verdict, key elections of the prime minister, speaker and deputy speaker have already been held.

In its 22-page order, the Election Commission also decided to distribute the quota of seats for SIC among other parliamentary parties. PMLN and PPP are to be the major beneficiaries in case the Supreme Court does not reverse the ECP verdict.

One member of the Election Commission from Punjab, Babar Hassan Bharwana gave a dissenting note. The order says, “….the Commission is of the view that in light of clear provisions of Article 51(6) of the Constitution read with Section 104 of the Elections Act, 2017 and Rule 92 and 94 of the Election Rules, 2017, SIC is not entitled to claim for the quota for reserved seats for women and non-Muslims due to having non curable legal defects and violation of mandatory provision of submission of party list for reserved seats, which is the requirement of law”.

“The seats in the National Assembly shall not remain vacant and will be allocated by the proportional representation process of political parties on the basis of seats won by political parties. Office is directed to calculate the quota accordingly,” it maintained.

The SIC has pocketed 91 out of a total of 115 general seats of Khyber Pakhtunkhwa Assembly and it would be interesting to see, how the reserved seats are distributed, concerning the provincial assembly, where PTI has already formed government.

In his dissenting note, Bharwana said he agreed to the extent that the reserved seats could not be allocated to SIC, as priority list had not been submitted in time by the political party which was the basic requirement of law and noted it could not be submitted at a later stage after the conduct of elections. However, he dissented with the part of judgment about allocation of seats by way of proportional representation to the other political parties.

He contended that Article 51(6-d), and Article 106(3-c) of the Constitution clearly stated the that reserved seats would be allocated to the political parties on the basis of total n umber of general seats secured by each political party from the province concerned in the National Assembly or the provincial assemblies.

The ECP member noted, “Hence, these seats shall remain vacant till the time any such amendment in Article 51 and 106 of the Constitution is made by the Parliament”.

The ECP order says Article 51 read with Section 2 of the Elections Act, 2017 is clear that a political party is an association which participates in the election for the public offices and for the assemblies.

In the present case, admittedly SIC is a registered political party with the Commission having their own symbol; however, the said political party did not participate in the election as a registered political party. Moreover, specific time was given by the Commission for submission of priority list by the political party for reserved seats. SIC did not submit any priority list to the Commission which means the party was not interested in contesting General Elections 2024 as a political party nor they wanted to get seats reserved for women and non­Muslims.

“Every Political Party while taking any decision in respect of any vital steps in respect of matters of the Political Party which are required under law should be aware of the consequences which they can face in the future,” it reads.

It refers to the argument advanced by counsel for SIC who cited an example of BAP in respect of allocation of reserved seats in the KP Assembly in 2019 but said he failed to provide any document in support of his arguments.

It says though the independent returned candidates have joined SIC after issuance of notification by the Commission, however, due to non curable procedural and legal defects and violations of mandatory provisions of the Constitution and Law, the said political party cannot claim the quota share in the served seats for the women and non-Muslims.

The word ‘Political Party’ contesting elections is specifically provided under Article 31(6) send with Section 104(1) of the Elections Act, 2017 for claiming the seats reserved for women and non-Muslims. Similarly, mere joining inclusion of a Political Party by the independent returned candidates cannot accrue the right to claim for the quota for the reserved seats for women and non-Muslims while having violations of mandatory provisions of the Constitution and the Law.

It says Article 51(6) of the Constitution read with Rule 94(2) of the Election Rules, 2017 provides the procedure for allocation of reserved seats to the Political Parties. It is clearly stated in Article 516) of the Constitution that the seats will be allocated to the political parties which contested election and won/secured general seats in the assembly and the seats reserved for women and non-Muslims will be allocated on the basis of proportional representation system.

Similarly, Rule 94 of the Election Rules, 2017 specifies the procedure by stating that the Commission by notification in the official gazette, declare the total number of general seats won by any political party in the National Assembly and Provincial Assembly respectively.

“It is further stated that the per centum share of each political party shall be worked out with reference to the total number of general seats in the National Assembly and the Provincial Assembly. The formula is provided for the reserved seats for non-Muslims,” it reads.

The order says the honourable Supreme Court of Pakistan in its judgment where it was emphasized that negative language used in a statute where it reposes a statutory duty on a public official means that the provision was mandatory even if no penalty is prescribed for it.

It says Section 104 of the Elections Act, 2017 stipulates that for the purpose of allocation of reserved seats for women and non-Muslims in an Assembly, the Political Party contesting general seats shall within the period fixed by the Commission for submission of nomination papers will file separate list of .their candidates in order of priority with the Commission or with the provincial election commissioner or an ECP authorized official.

“The learned counsel for the petitioner 1 (SIC) during his arguments submitted an example of BAP in respect of allocation of allocation of reserved seats in the KP Assembly in 2019 but on query for provisions of any order of the Commission or any document in support of his arguments, the counsel did not provide any material evidence or order or document to and the Commission,” it points out.

Though in the instant case, the order said, the independent returned candidates have joined SIC after issuance of notification by the Commission, however, due to non curable procedural and legal defects and violations of mandatory provisions of the Constitution and Law, the said political party (SIC) cannot claim the quota share in the served seats for the women and non- Muslims.

The order emphasized that word ‘Political Party’ contesting elections is specifically provided under Article 31(6) send with Section 104(1) of the Elections Act, 2017 for claiming the seats reserved for women and non-Muslims. Similarly, mere joining inclusion of a Political Party by the independent returned candidates cannot accrue the right to claim for the quota for the reserved seats for women and non-Muslims while having violations of mandatory provisions of the Constitution and the Law.

“The learned counsel for the petitioner No. I also contended that the formula for the reserved seats will be applicable in the case that the seats will remain vacant if not allocated to the SIC. Article 51(6) of the Constitution read with Rule 94(2) of the Election Rules, 2017 provides the procedure for allocation of reserved seats to the Political Parties. It is clearly stated in Article 516) of the Constitution that the seats will be allocated to the political parties which contested election and won/ secured general seats in the assembly and the seats reserved for women and non-Muslims will be allocated on the basis of proportional representation system,” it says.

Similarly, the order says, Rule 94 of the Election Rules, 2017 specifies the procedure by stating that the Commission by notification in the official gazette, declare the total number of general seats won by any political party in the National Assembly and Provincial Assembly respectively. It is further stated that the per centum share of each political party shall be worked out with reference to total number of general warm in the National Assembly and the Provincial Assembly. The formula is provided for the reserved seats for non-Muslims.

The order says Section 104 of the Elections Act, 2017 stipulates that for the purpose of allocation of reserved seats for women and non-Muslims in an Assembly, the Political Party contesting general seats shall within the period fixed by the Commission for submission of nomination papers will file separate list of .their candidates in order of priority with the Commission or with the provincial election commissioner or an ECP authorized representative.

The honorable Supreme Court of Pakistan in its judgment reported as SCMR 2022 1333 already emphasized that negative language used in a statute where it reposes a statutory duty on a public official means that the provision in mandatory even if so penalty in prescribed for it.

The Election Commission had hitherto kept pending the allocation of as many as 78 out of the total 226 reserved seats for women in the national and provincial assemblies, and these were to be allocated to SIC as per the formula, keeping in view its general seats.

Out of the total 60 reserved seats for women in the NA, the Election Commission has so far allocated 40 seats to different political parties: These include 20 of the total 32 for Punjab, two out of 10 for Khyber Pakhtunkhwa, all 14 from Sindh and all four from Balochistan.

Similarly, seven out of 10 seats reserved for minorities in the NA were allocated as well. Of the total 66 reserved seats for women in the Punjab Assembly, it had allocated 42 seats and five out of eight reserved for minorities. Likewise, in Sindh Assembly, it had allocated 27 of the total 29 seats reserved for women and eight out of nine reserved for minorities.

The Commission has allocated five out of total 26 reserved seats for women in the Khyber Pakhtunkhwa Assembly and one out of four reserved for minorities. However, all the 11 reserved seats for women and three for minorities in Balochistan Assembly have already been allocated.

In a related development, PTI leader Senator Ali Zafar Monday demanded postponement of presidential and Senate elections till final decision on the Sunni Ittehad Council’s (SIC) demand for allocation of reserved seats of women and non-Muslims.

Speaking on the floor of the Upper House of Parliament, he said the polls should be postponed for the time because there was no room in the Constitution that both the elections would be held without allocation of reserved seats.

He made this demand immediately after the Election Commission of Pakistan (ECP) issued its reserved verdict, rejecting a petition of PTI-backed SIC for allocation of seats reserved for women and minorities in the national and provincial legislatures. He rejected the ECP’s judgment.

“PTI would challenge the decision of the Commission in the Supreme Court and the elections of the coveted position of president and the Senate should not be held till the final verdict, as our party will not accept the results of presidential and Senate election if these were held before the decision of the apex court,” he made it clear.

He referred to Article 51 and Article 106 of the Constitution and said the National Assembly and provincial assemblies were incomplete without allocation of seats reserved for women and minorities besides the general seats.

Ali Zafar said the elections of prime minister, chief ministers, speakers, deputy speakers, president and Senate could not be held until all the houses were complete. He called the election of prime minister unconstitutional.

He charged, “This is the last assault on the heart of democracy. We not only demand resignation of all the members of the ECP but also initiation of proceedings of high-treason against them under Article 6 of the constitution. This illegal, unconstitutional and anti-democracy decision (of ECP) is intolerable”.

He argued that the ECP under Article 218 and Article 219 of the Constitution had failed to fulfil its constitutional duties in holding free and fair elections and now violated the Constitution by not allocating the reserved seats to the SIC and giving the share to the other parties.

Under Article 51(6-d) of the Constitution, he emphasised, the Election Commission has to allocate reserved seats to any political on the basis of its proportional strength of general seats in the national and provincial assemblies.

He noted that the general seats include those independents joining that party, whereas 92 PTI-backed MNAs, besides provincial assembles had joined SIC only to get reserved seats, and ECP had to allot them 23 reserved seats in the NA.