Legal experts weigh in on transfer of reserved seats

KARACHI: Legal experts are sceptical of the ECP’s decision to divide the PTI-backed Sunni Ittehad Council’s share of reserved seats among other parties, and say it may not be a legally sustainable position.

On Monday, a five-member bench of the ECP ruled in a 4-1 decision that the PTI-backed SIC was not eligible for the reserved seats allotted to women and minorities. With this verdict, the PTI-SIC is set to lose the 77 reserved seats it had laid claim to. According to the ECP ruling, these seats will now be divided among the other parties.

Monday’s verdict has drawn stringent commentary by most legal experts. Commenting on the decision, Supreme Court advocate Basil Nabi Malik asks whether anyone is even surprised by the verdict. He says that the “legal reasoning behind this order is predictable, and in light of the legal framework in vogue, quite expected.” That said, the decision ignores two points, per Malik: “First, there is a concerning lack of addressing the purported contradictions in the treatment meted out to BAP in a previous case as opposed to the treatment being meted out to the PTI right now. Second, the very foundation of the constitution rests on democratic representation. And what could be any bigger a slight to such a mandate than denying a party its due representation in the assembly on the basis of technical knockouts?”

With the PTI already saying it will turn to the courts, this is an inevitability that Hafiz Ahsaan Ahmad Khokhar, advocate of the Supreme Court, also mentions -- noting that “this legal disagreement will settle in the superior courts where they will determine and finally interpret Articles 5,106, and 224 of the constitution, as well as in Section 104 of the Election Act, 2017 and Rules 92, 93, and 94 of the Election Rules, 2017.”

Lawyer Abdul Moiz Jaferii is quick to point out that the next step the ECP is looking to complete will be to “divide the seats that ought to have gone to the PTI-SIC proportionately between the listed parties in the assembly.” Is there any constitutional provision that allows for this step or talks of what to do with vacancies? Jaferii says “No constitutional provision specifies vacancies because the constitution doesn’t envisage such a theft of a mandate.”

The ECP awarding the remaining reserved seats to the other parties is a contentious issue that had cropped up during the case as well, with lawyers even then unconvinced of this option. Barrister Rida Hosain is clear that the ECP cannot give away the 77 seats that were supposed to go to the PTI-SIC: “The reserved seats of a political party are a constitutional entitlement; it is absurd for the ECP to distribute them among other parties. This is further reinforced by the fact that Section 104(4) of the Election Act, 2017 states that where a party list for reserved seats is exhausted, a political party can at any time submit an additional name. The fact that political parties are allowed to add additional names demonstrates that reserved seats are non-transferable.”

Hafiz Khokhar is also of the opinion that, “while the ECP has announced its judgment per the legal scheme and provisions of Articles 5, 106, and 224 of the constitution, and Section 104 of the Election Act 2017 read with Rules 92, 93, and 94 of the Election Rules 2017, these reserved seats cannot be allotted legally by the ECP to any other political party beyond its mandate and share of the general seats won during the recent general election.” According to Khokhar, these seats remain vacant.

Going into the specifics of why the ECP’s verdict is a blow not just to the PTI but also to the spirit envisaged in the constitution regarding granting winning parties their share in reserved seats, lawyers say this is no win for democracy.

Jaferii reiterates that the right to form a political party “and be thus associated is a constitutional right. The right to be allotted these reserved seats is a similar constitutional right.”

He says that while these rights are qualified by the Election Act and Election Rules, “these qualifications cannot be used to deprive a political party of their rightful constitutional due. I feel this is a technical knockout in keeping with all the other technical knockouts the PT” has suffered and is as predictable as the earlier ones were.”

Barrister Rida Hosain explains this reasoning: “Article 51 of the constitution sets out in clear terms how reserved seats are to be allocated. A political party is entitled to reserved seats by way of a system of proportional representation based on the number of general seats secured in the National Assembly. Crucially, when determining the number of general seats a party has won, independent candidates that duly join a political party within three days of their names being published in the gazette are to be included.” This means, says Hosain, that the fact that PTI independents joined the SIC after the elections “cannot act as a bar.”

However, Khokhar is of another mind regarding this. According to him, “the SIC’s case before the ECP was constitutionally and legally weak” and that just having a political narrative would not have helped them get a decision in their favour “by bypassing the constitutional scheme and Election Act.”

The problem lies in the way the law has been applied, says legal analysis. Barrister Rida feels that in this case “denying a political party its share of reserved seats and instead allotting these seats to other parties is a disproportionate penalty not provided in the law. It goes against the letter and spirit of the constitution. Election laws should be interpreted in a manner that promotes democracy and gives effect to the legislative and constitutional intent regarding seat allocation.”

Unfortunately, the PTI may not have thought its SIC gambit through. Moiz Jaferii elaborates” “I feel that the PTI shouldn’t have played themselves into this position of being technically knocked out and should have instead stayed firm in the position that they remain a political party despite being deprived of a symbol and the election rule which seeks to treat them differently post symbol loss is unconstitutional. They should have then asked for their proportionate allotment of reserved seats.”

Jaferii adds that by taking the SIC route the PTI “decided to play technicalities on their home turf. They lost. They would have likely lost the other route too, but at least it would have been a clearer situation to put right: that a symbol being taken away does not take away their constitutional recognition as a political party.”