Hafiz-Ahsaan
The Supreme Court’s live-streaming of this high-stakes constitutional reserved seats case, following the 26th Constitutional Amendment, is a welcome development that enhances public transparency, democratic accountability, and legal education. It has enabled lawyers, scholars, and citizens to observe in real time how constitutional questions are framed, debated, and decided-thereby demystifying judicial proceedings and deepening civic understanding of the Constitution.
The controversy surrounding allocation of reserved seats for women and non-Muslims following Pakistan’s general elections held on 8 February 2024 has ignited an intense constitutional debate. At its heart lies a critical question: Can a political party that did not contest the elections on its own common symbol, nor submitted nomination papers or priority lists for reserved seats, be constitutionally entitled to such seats based merely on post-election alignments-through judicial intervention?
The allocation of reserved seats is governed by the Constitution of Pakistan, specifically Articles 51(6)(d) and 106(3)(c), which stipulate that reserved seats for women and non-Muslims are to be proportionately allocated to political parties based on the number of general seats they win. These provisions are unambiguous and impose an essential prerequisite: a political party must contest and win general seats to become eligible for reserved seats.
This framework is operationalized by the Elections Act, 2017, particularly Section 104 (as amended on 8 August 2024): Limits eligibility for reserved seats to political parties that both contested the elections and won at least one general seat, Section 105: Mandates political parties to submit priority lists for reserved seats before the nomination deadline, Section 106: Reserved seats are distributed in proportion to general seats secured and Rule 92(6) of the Election Rules, 2017: Bars any post-deadline amendments to the priority list. The constitutional scheme was designed to ensure electoral discipline, political accountability, and a transparent method for translating electoral support into legislative representation.
In this context, the Sunni Ittehad Council (SIC) neither contested the elections of 8th February 2024 on its own party symbol nor submitted any priority list for reserved seats and neither PTI contested the election on common election symbol as required under section 215 of the Election Act 2017. Following the elections, a number of independent candidates, who were previously affiliated with Pakistan Tehreek-e-Insaf (PTI), claimed to have joined SIC. Based on this post-election realignment, SIC sought allocation of reserved seats from ECP through an application that the independent candidates now have joined SIC after general election 2024 thus on such proportion reserved seats may be allocated to them. The Election Commission of Pakistan (ECP) on 1st March 2024 rejected SIC’s claim. This decision was upheld by the Peshawar High Court on 28th March, reaffirming that SIC had not fulfilled the legal requirements to claim reserved seats. Crucially, PTI itself as a political party, did not contest the general elections on its own common symbol; did not appear before the ECP for allocation of reserved seats and did not challenge the ECP’s order before the Peshawar High Court or the Supreme Court, thus PTI’s legal inaction as required under the Constitution and Election Act 2017 effectively barred it from seeking any post-facto relief regarding the allocation of reserved seats.
The 22 September 2024 detailed judgment on allocation of reserved seats thus suffers from serious constitutional and legal infirmities. It disregards the constitutional plain language; time bounded mechanism for each step, clear text, violates statutory mandates, and introduces a principle that dilutes electoral clarity and constitutional scheme on the subject in hand. It also contradicts the Supreme Court’s own jurisprudence decided recently in reviews and appeals such as Article 62(1)(f) cases, the time limit disqualification and further emphasized adherence to constitutional fidelity and truthfulness; the Practice and Procedure Act 2023 judgment, wherein the Court acknowledged legislative supremacy; the Article 63A case upholding party discipline and the legal procedure of defection; the trial of civilians by Military Courts and NAB Amendment case, where the Supreme Court reinforced the principle of judicial restraint, redefining its constitutional jurisdiction and whole heartedly accepted Parliament’s legislative competence. In each of these landmark decisions, the Supreme Court reiterated that it is a constitutional interpreter-not a constitution-maker, and they are bound to act within the four corners of the Constitution and cannot judicially rewrite or override the text of Constitution.
The 8-5 split in the 22 September 2024 judgment has fractured judicial consensus and unsettled electoral jurisprudence. It has also invited legitimate concerns over judicial neutrality, procedural fairness, and respect for legislative primacy. To restore constitutional coherence and institutional legitimacy, there is a pressing need for this issue to be reconsidered by Constitutional Bench of the Supreme Court. Such reconsideration may aim to reaffirm the binding nature of Articles 51 and 106 and related election laws such as section 104 and Rule 94 of the Election Rules 2017; and would clarify the limited scope of Article 17(2) and Article 187(1) of the Constitution; re-establish the fundamental constitutional principle that only political parties which contest elections under common symbol as required under section 215 of election Act read with rule 94, submit valid priority lists as per election schedule under section 58 of the Election Act, and applying within time for a declaration to join a political party inside assembly as per Articles 51 and 106 of the Constitution whose have one minimum one seat win general seats are only entitled to these reserved seats.
The judgment on reserved seats not only misconstrued the scope of Article 17(2) of the Constitution-which guarantees the right to form and be a member of a political party-but also excessively stretched the application of Article 187 of the Constitution, which relates to the Court’s power to do complete justice. The provisions were interpreted in a manner that overrode the constitutional scheme provided in Articles 51 and 106 concerning allocation of reserved seats in the National and Provincial Assemblies. Furthermore, it was submitted that Section 104 of the Elections Act, 2017, and Rule 94 of the Election Rules, 2017, which provide a comprehensive legal mechanism for the allocation of reserved seats to parliamentary parties, were not considered by the Court. The Parliament before issuance of detailed reasons also passed amendments in section 104 of the Election Act 2017 on August 8th by giving more clarification of the process with retrospective effect.
There is no legal doubt that the Articles 51 and 106 of Constitution read with section 104 of Election Act and Rule 94 of the Election Rules explicitly provide the complete mechanism of allocation of reserved seats and simultaneously require contesting and winning general seats, coupled with prior submission of priority lists, as prerequisites for eligibility to reserved seats, therefore Articles 17(2) and 187 cannot override the express constitutional commands of Articles 51 and 106, nor can they be employed to judicially create post-election entitlements. Nonetheless, even the highest court of the country must operate within constitutional bounds. This case presents a critical test of whether the Supreme Court will correct course and uphold the doctrine that judges interpret-but do not rewrite-the Constitution.
There exists a strong legal and constitutional likelihood that, consistent with its approach in the Article 62(1)(f) case, the Article 63A interpretation regarding vote counts and defection, the judgment on the Supreme Court (Practice and Procedure) Act, as well as the decisions in the trial of civilians under military laws and NAB amendment cases, where the SC has ratified its earlier decisions but also redefined its constitutional interpretation role, so in the present case there is strong legally likelihood that the Honourable Supreme Court will once again recognize the constitutional boundaries of its jurisdiction and uphold the rule of law through a structured, reasoned, and judicially restrained adjudication. The time is ripe for a principled constitutional reset-one that respects legislative supremacy, honors electoral integrity, and affirms that constitutional entitlements cannot be claimed through post-election maneuvering or judicial creativity. The future of constitutional democracy in Pakistan depends on it.
This case would ultimately reinforce the Court’s role as the guardian of the Constitution, not its modifier. Only through judicial restraint, textual fidelity, and respect for constitutional procedure can the integrity of Pakistan’s electoral democracy be safeguarded.
The writer is a practicing lawyer at Supreme Court and has served as Chairman, Federal Excise & Sales Tax Appellate Tribunal and Senior Advisor Federal Ombudsman. Email: hafizahsaan47 @gmail.com
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