ECP defers notification for reserved seats in Punjab PA

ISLAMABAD: The Election Commission of Pakistan (ECP) Thursday deferred issuance of a notification of PTI members of the Punjab Assembly against five reserved seats that fell vacant following de-seating of 25 MPAs over defection.

The five-member bench of the Election Commission, headed by Chief Election Commissioner Sikandar Sultan Raja, held: “Being a case of first impression, we have come to the conclusion that the scheme of proportional representation provided in the Constitution is mandatory for filling of vacant reserved seats for women and non-Muslim. Keeping in view the spirit of Article 106 of the Constitution, we deem it appropriate to defer the filling of vacant reserved seats till the outcome of by-elections on 20 general seats in the provincial assembly of Punjab."

The order explains that the Article 106 of the Constitution provides mechanism to fill reserved seats for women and non-Muslims allocated to a province under clause (1) of the said Article. 

Similarly, Section 104 of the Elections Act provides complete mechanism for election to the reserved seats for women and non-Muslims. Generally, individual reserved seat(s) falling vacant on account of death, resignation or disqualification of a member(s) are filled through the next member in order of precedence from the party list as provided under Article 224 of the Constitution.

The subject case is of first impression because twenty members from the general seats of a parliamentary party (the petitioner No. 1) have been disqualified and they have been de-seated under Article 63-A of the Constitution, which has sufficiently reduced the strength of general seats of the petitioner’s party in the Punjab Assembly.

The ECP observed: “It is a matter of record that barring individual cases, no such case of large scale de-seating of members of an assembly and recalculation of quota of reserved seats has cropped up before us. It is settled and established principle of construction and interpretation that no provision of the Constitution or an Act shall be read in isolation and it should be read as a whole as held in a number of judgments by the august Supreme Court.”

The order also explains that it has been held by the Supreme Court on many occasions that redundancy cannot be attributed to the legislature nor constitutional provisions are to be interpreted to render any of the provision redundant or ineffective. Then, citing a Supreme Court judgment, the order said: “A written Constitution is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus, the approach, while, interpreting a constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be a narrow and pedantic. PLO 1997 SC 426: if two provisions conflict with each other, the courts should first resolve the same by reconciling them. But if reconciliation seems difficult, then such interpretation should be adopted which is more in consonance or nearer to the provisions of the Constitution guaranteeing fundamental rights.”

In the backdrop of recent disqualification of twenty-five legislators, including five members of the reserved seats, of Punjab Assembly belonging to PTI on the ground of defection under Article 63-A of the Constitution, a controversy arose as to whether these vacant reserved seats shall be filled from the party list or on the basis of changed strength of the political parties in the assembly.

PTI counsel Faisal Fareed contended before the ECP that according to Article 106(3)(c) of the Constitution, the members to fill seats reserved for women and non-Muslims allocated to a province under clause (1) of the Article 106 shall be elected in accordance with law through proportional representation system of political parties lists of candidates on the basis of total number of general seats secured by each political party in the provincial assembly.

Then, he referred Article 224(6) of the Constitution and submitted that when a seat reserved for women or non-Muslims in the National Assembly or a provincial assembly falls vacant, on account of death, resignation or disqualification of a member, it shall be filled by the next person in order of precedence from the party list of the candidates to be submitted to the Election Commission by the political party whose member has vacated such seat. He contended that once the reserved seats are allocated to a political party on the basis of general seats won by a political party it cannot be altered changed or amended at a later stage.

While giving his arguments, he submitted that Section 104 of the Elections Act, 2017 regulates the procedure of election and filling of vacant reserved seats. He submitted that it is the rule of interpretation that if any provision of the subordinate legislation is in the same language as provided in the main law, it shall be considered, however, if the provision of subordinate legislation is not in consonance with the language of the main law, it shall not be considered and ignored.

While drawing distinction between the Elections Act, 2017 and the Constitution, he submitted that the latter is superior law and the prior is the subordinate/inferior legislation. He argued that in case of any lacuna in the law or Constitution, it cannot be filled by courts or by the Commission as the commission is an executive body and not a tribunal or a court and the main duty of the commission is to perform its functions and to issue a notification as provided in the Constitution and law to fill the vacant reserve seats. He submitted that it is the job of parliament to legislate and amend the law.

Attorney General Ashtar Ausaf Ali said the members elected for reserved seats also have some criteria for their selection and addition in the party list. They have to possess certain qualifications. He argued that filling of reserved seats and proportional representation are interlinked. If the number of general seats decreases, then the representation would not become proportionate and it would be disproportionate. He added that in the instant matter, the PTI has lost its 20 general seats in the provincial assembly and automatically has lost the proportional representation required for getting reserved seats in the assembly.

He said in his opinion the solution to resolve the instant controversy is to conduct by-elections on 20 vacant general seats and then calculate the quota of reserved seats on the basis of proportional representation of the parties in the assembly.

After the ECP decision, Pakistan Tehreek-e-Insaf (PTI) has announced to challenge the development in the court of law, alleging the ECP’s decision was a flagrant violation of the Article 224(6) of the Constitution.