ECP Refuses To Grant 'Non-Parliamentary Party' SIC Reserved Seats

The reserved seats will now be allocated by a proportional representation system to political parties who contested elections

ECP Refuses To Grant 'Non-Parliamentary Party' SIC Reserved Seats

The Election Commission of Pakistan on Monday refused to allot reserved seats to the Sunni Ittehad Council - which had absorbed the vast majority of independent candidates backed by the Pakistan Tehreek-e-Insaf (PTI) - by ruling that the party had "non-curable legal defects and violation of mandatory provision of submission of preferential party list for reserved seats which is a requirement of law".

The reserved seats, however, will not remain vacant and will be allotted by a proportional representation process of political parties based on seats won by the parties in the National Assembly.

This was contained in a 22-page verdict issued by the Commission on Monday. The verdict contained a dissenting note from Babar Hassan Bharwana.

The verdict noted that the commission had received representation from the Sunni Ittehad Council (SIC), the Pakistan Peoples Party (PPP), the Muttahida Qaumi Movement Pakistan (MQM-P), the Pakistan Muslim League-Nawaz (PML-N), Jamiat Ulema-e-Islam Fazl (JUI-F) chief Maulana Fazlur Rehman, Grand Democratic Alliance (GDA) chief Pir Sibghatullah Shah Pir Pagara, Istehkam-e-Pakistan (IPP) Chairman Abdul Aleem Khan, Pakistan Muslim League-Quaid (PML-Q) Chairman Chaudhry Shujaat Hussain, among others.

The ECP said the SIC demanded that the commission grant it reserved seats per its final strength in the National Assembly. 

However, opposing parties argued that the SIC cannot be considered a parliamentary party since they did not contest the elections as a party. Moreover, others argued that they did not submit a preferential list of candidates, as required by law. Others still demanded the merger certificate for independents joining SIC.

The ECP has observed that per the record, the SIC had failed to submit a priority list for the reserved seats for women and non-Muslims and did not even file nomination papers for them before the date fixed by the Commission, December 24, 2024. 

Moreover, the Commission noted that after the returned independent candidates joined the SIC, it requested the Commission through four different letters on February 21 for allocation of reserved seats for women and non-Muslims in the National Assembly and provincial assemblies.

"It is also checked from the record that SIC did not contest election for any seat in the National or the Provincial Assemblies even the nominated candidates of SIC and the Chairman contested election as independent candidates despite having their own election symbol, "Horse"," the judgment said. Moreover, the ECP said that the SIC, through its letter on February 26, confirmed that it had contested elections as independents candidates and provisions of Section 206 of the Elections Act, 2017 do not apply to them.

"Article 51 read with Section 2 (XXVIII) 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," the decision read, adding that admittedly SIC is a registered political party with the Commission with their symbol, but it 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 did they want to get seats reserved for women and non-Muslims," the ECP decision observed. 

"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," the Commission reminded.

The ECP further held that provisions under Section 104 of the Elections Act, 2017 clarify that the preferential list submitted by a political party within the specified time fixed by the Commission cannot be altered or changed or modified by political parties after that date. 

"The same Proviso also clears that no addition, deletion or omission can be made in the list submitted by the Political Parties within specified time in form of schedule issued by the Commission."

ECP, while minutely studying the Article 224(6) of the Constitution, has observed that the Article is clear and it transpires that if the reserved seats for women and non-Muslims in the National or 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 priority from the list of the candidate to be submitted to the ECP by the Political Party whose members have vacated such seats. 

"It further means that the members can be elected from already submitted list by the political party which is the requirement in the case of vacancy."

The ECP stated that the language of Article 224(6) and Section 104(4) and (5) of the Elections Act, 2017 is not ambiguous in respect of importance of submission of priority list by a Political Party within specified time and before the conduct of election.

"No fresh list can be submitted at belated stage by any Political Party and even the list cannot be entertained by the Commission," the ECP held, adding, "Both Article 224(6) and Section 104 of the Act, 2017 are clear and need no further interpretation in the Constitution and Law. It also clarifies that non submission of the priority list is a non
curable defect and cannot be cured/ relaxed in any situation."

ECP further held that there is no provision under the Constitution and the Law which allows submission of fresh priority list for reserved seats for women and non-Muslims after expiry of the period specified in election schedule.

The ECP concluded that given the clear provisions of Article 51(6) of the Constitution read with Section 104 of the Elections Act 2017 and Rules 92 and 94 of the Elections Rules 2017; the SIC was not entitled to claim the quota of reserved seats for women and minorities.

The commission noted that submitting a party list for reserved seats and subsequent scrutiny of the candidates is a legal requirement.

"The seat in the National Assembly shall not remain vacant and will be allocated by proportional representation process of political parties on the basis of seats won by political parties," it said.

Dissenting note

In his dissenting note, ECP Member Babar Hassan Bharwana said that he partially agrees with other members that reserved seats cannot be allotted to SIC as it had failed to submit a priority list and that, legally, such a list cannot be submitted after the elections.

"However, I have dissenting views with regard to allocation of seats by way of proportional representation to the other political parties," he said, voicing his opinion that Article 51(6-D) and Article 106(3-C) of the Constitution clearly state that reserved seats shall be allocated to the political parties on the basis of total number of general seats secured by each political party from the province concerned in the National Assembly or such reserved seats secured by each political party in the provincial assembly."

"Hence, these seats shall remain vacant till the time any such amendment in Articles 51 and 106 of the Constitution is made by the parliament."

Weak case

Legal expert Hafiz Ahsaan Khokhar told The Friday Times that SIC's case before the ECP was Constitutionally and legally weak, adding it was also not within the mandatory conditions of Constitution and Election Act for allowing the allocation of reserved seats for women and non Muslims after elections. Thus, only presenting a political narrative before a legal forum would not have been legally justified to get a decision in their favour while bypassing the Constitutional scheme and Election Act.

"Since this is the first time that a significant number of candidates for the national assembly and provincial assemblies have been returned to office during the general election and have joined a political party in both assemblies which does not have any parliamentary presence before the joining of independent candidates," he maintained. 

Consequently, this legal disagreement will settle in superior courts where they will determine and finally interpret Articles 5,106, and 224 of the 1973 Constitution, as well as in Section 104 of the Election Act 2017 and Rules 92, 93, and 94 of the Election Rules 2017, he added. 

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain