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CWA # 1314, 16 May 2024
Pakistan Reader
Continuing Controversy over Pakistan's "Reserved Seats": Six Implications of Legal and Political Wrangling

  D Suba Chandran

On 13 May, following an earlier verdict of the Supreme Court on 6 May, the Election Commission of Pakistan was forced to suspend its notification of 77 reserved seats for the national and three provincial assemblies. This means the return of the "Reserved Seats" question to haunt the politics and independent institutions, including the Election Commission of Pakistan and the Judiciary (High Court and Supreme Court). 

What is the issue, and why is there a wrangling between the parties, the Election Commission and the Courts? And what does this wrangling mean?

What are Pakistan's Reserved Seats?
Pakistan's Constitution provides for reserved seats in the National Assembly and four provincial assemblies. According to the Constitution, there are 336 seats in the Parliament, of which 70 are reserved for women (60) and minorities (10). Similarly, all four provincial assemblies have elected and reserved seats. The Punjab provincial assembly has 371 seats, of which 74 are reserved for women (66) and minorities (08). The Sindh provincial assembly has 168 seats, of which 38 are reserved for women (29) and minorities (9). Similarly, the other two provinces also have the same provisions.

The reserved seats for the national assembly and four provincial assemblies are allocated by the Election Commission in proportion to the number of seats that the political parties have won in general seats. 

What is the controversy over Reserved Seats in Pakistan?
The controversy surrounding the current crisis regarding reserved seats started with the Election Commission's decision not to allow Imran Khan's PTI to contest as a party. According to many within Pakistan, as a part of pre-election political engineering, a series of measures did not provide a level playing field, including the Election Commission's decision to disallow the PTI candidates from contesting under the party name. The Election Commission disallowed the use of the party's symbol. As a result, the PTI candidates contested the February 2024 elections as independents. In retrospect, Imran Khan and the PTI were unaware of the implications of contesting the elections for the national and provincial assemblies as independents. 

When the elections were over, despite the multiple challenges, the PTI had fared well in the elections. According to the results of the general/elected seats for the national assembly, the PTI independents had won 93 seats, followed by PML-N (74), PPP (54), MQM (17) and JUI-F (4). However, when the 70 reserved seats for women and minorities were allocated by the Election Commission, based on proportionality, the PML-N, PPP, MQM, and the JUI-F ended with securing 114, 73, 22 and 09 for the Parliament. In contrast, the PTI final composition remains the same -93. There were similar developments/numbers in the four provincial assemblies as well.

The PTI, aware of the importance of the reserved seats, asked its members who contested the elections as independents to join the Sunni Ittehad Council (SIC), a Barelvi party formed in 2009. Though there were no alliance between the PTI and SIC before the elections, the PTI wanted to get its share of reserved seats for the national assembly and the four provincial assemblies. Though the SIC did not win a single seat in the Parliament, it staked a claim for the reserved seats after the PTI independents joined the party. The PTI is expected to get 23 of the 70 reserved seats, increasing its tally to 100 plus, making it the largest party in Parliament. 

The Election Commission refused to accept the SIC/PTI's above claim. Instead, it shared the 70 reserved seats with the following parties: PML-N, PPP, MQM-P, JUI-F, IPP, and PML-Q. 

The Legal Wrangling: Between the Election Commission, Peshawar High Court and the Supreme Court
The Election Commission rejected the SIC/PTI claim that the SIC is not a Parliamentary party (it did not win a single seat in the February elections for the Parliament). It did not submit a list of candidates for reserved seats before the elections. The latter is a requirement for the Elections Commission to distribute the reserved seats for the national and provincial assemblies. While the other parties did submit the list, the PTI and the SIC had one. The former did not, as it could not. The latter failed, perhaps an oversight.

The PTI calculated that asking its candidates to join the SIC would allow the party access to the reserved seats. It did not expect that the move would fail. In early March, citing constitutional requirements, the Election Commission denied the reserved seats for the SIC. Dawn quoted the Election Commission: "The records revealed that the SIC did not submit priority list for the reserved seats for women and non-Muslims…In Article 51 of the Constitution, it is clear that political parties that have representation in the National Assembly by way of winning seats would be eligible for the allocation of reserved seats for women and non-Muslims through a proportional representation system."

Also citing provisions relating to elections, the Commission said in its decision, as quoted by Dawn: "…in light of clear provisions of Article 51(6) of the Constitution read with Section 104 of the Elections Act, 2017…, SIC is not entitled to claim quota for reserved seats due to having non curable legal defects and violation of a mandatory provision of submission of party list for reserved seats which is the requirement of law."

Besides rejecting the SIC/PTI claims for reserved seats, the Election Commission made another important decision. It decided: "The seats in the National Assembly shall not remain vacant and will be allotted by proportional representation process of political parties on the basis of seats won by political parties." The above would mean the other political parties—from PML-N to PML-Q—would get more than their share of reserved seats. And that was precisely what happened.

The SIC filed a petition at the Peshawar High Court against the Election Commission's decision on the reserved seats. In March 2024, the PHC upheld the Election Commission's decision and dismissed the SIC petition. 

Following the dismissal of its petition by the Peshawar High Court, the SIC filed a petition in early April 2024 at the Supreme Court, challenging the former's decision. On 6 May, the Supreme Court, in its judgement, suspended both – the Election Commission's order and that of the Peshawar High Court, with a clarification that "this interim order relates to the disputed seats only, i.e., the reserved seats allocated over and above the initially allocated reserved seats to the political parties."

Following the Supreme Court's verdict on 6 May, the Election Commission, on 13 May, suspended its earlier notification on reserved seats to the three provincial assemblies (except Balochistan) and the national assembly. This would mean the suspension of 22 reserved seats in the national assembly and 25, 27 and three seats, respectively, for the provincial assemblies of KP, Punjab and Sindh. The above seats are related only to those disputed by the SIC and not the overall reserved seats for the national assembly and four provincial assemblies.

What does the above mean? Six Implications
First, the final composition of the National Assembly and provincial assemblies. With the Election Commission of Pakistan withdrawing its earlier notification on reserved seats, 22 seats in the national assembly remain vacant. Similarly, for the provincial assemblies of KP, Punjab, and Sindh, 25, 27, and three seats, respectively, will remain vacant.

Second, the number of individual seats for the PML-N, PPP, MQM-P, JUI-F, IPP and PML-Q would change. Since the Election Commission allocated the above six parties the seats that the SIC/PTI claims, after the suspension, these parties' positions in the assemblies would get reduced depending on the seats that they originally won for the Parliament and provincial assemblies.  

Third, the nature of the majority in the Parliament. The ruling coalition's two-thirds majority in the Parliament would be reduced to a simple majority. 

Fourth, the question over Senate elections. The recent election for Pakistan's Senate was based on the above numbers after the Election Commission adjusted those seats to other parties. 

Fifth, if the reserved seats are reallocated and the SIC/PTI get 20 plus, the PML-N will no longer be the single largest party in the Parliament. 

Sixth, and the most important, is the question over the role of the Election Commission, an independent institution provided by the Constitution. In its editorial, Dawn was highly critical of the ECP's role in the entire election process. It said: "The role played by the ECP in perpetuating this sorry state of affairs, in particular, deserves strict scrutiny. Despite being vested with all the powers it needed to responsibly steer the country through a democratic transition, it could only manage an election that fell far short of the promise of being 'free, fair, impartial and inclusive'. It then bungled the management of election results, which gave rise to serious controversies regarding the 'fixing' of final results. Since then, the ECP has been either unwilling or unable to address the deluge of post-election complaints..."

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