Pakistan is said to be a democracy. Democracy is derived from two Greek root words: demos, meaning people, and kratos, meaning power. Democracy is the power of the people, including the power to make decisions through elected representatives. However, democracy appears to be under siege for the reasons discussed below.
First, the general election (GE) on February 8, 2024 was held after a three-month unconstitutional delay. Next, as always, there had been widespread accusations of rigging before and after the polls. This time, however, clear evidence emerged through discrepancies in forms 45 and 47. Regardless, the Pakistan Democratic Movement (PDM), which includes the Pakistan Muslim League Nawaz (PMLN), Pakistan People’s Party (PPP) and their allies, managed to form government. This ruling coalition, with legitimacy under question, was set to cross the threshold of a two-third majority in Parliament, becoming powerful enough to pass constitutional amendments. However, the recent Supreme Court ruling in the SIC reserved seats case[1] has thwarted such an outcome. The court has invalidated the Election Commission’s March 1 order, which had denied the Sunni Ittehad Council’s (SIC) request for its share of reserved seats in the National Assembly (NA). This decision is a significant step toward protecting the mandate of the people and ensuring fair representation in the Assembly.
For context, Pakistan’s National Assembly has a total of 336 seats, of which 266 are filled through direct elections on a first-past-the-post basis. At the same time, 60 are reserved for women and 10 for religious minorities. Article 51 of the Constitution[2] outlines the mechanism for the distribution of reserved seats in the National Assembly. According to sub-articles (3)(d) and (e), the allocation of seats reserved for women and minorities is done through a proportional representation system based on the list of candidates provided by political parties. This system is determined by the total number of NA general seats secured by each political party in the respective provinces. For instance, if a political party wins 20% of the NA general seats in a province, it would receive approximately 20% of the seats reserved for women or minorities, allocated to that province. Additionally, according to the provisos in both 3(d) and (e), any independent candidate who wins a seat and joins a party within 3 days of the election results being published in the official Gazette of Pakistan will have their seat counted as part of that party’s total. This factor is also taken into account when allocating reserved seats. Section 104 of the Elections Act 2017[3] supplements the Constitution by stipulating that for reserved seats allocated to women and minorities in an Assembly, political parties must submit prioritized candidate lists by the deadline for filing nomination papers, as set by the Election Commission.
The controversy surrounding reserved seats began with a Supreme Court verdict in the intra-party elections case[4] which stripped the PTI of its election symbol, the (cricket) bat. The Commission’s interpretation of this ruling led to the misclassification of PTI candidates as ‘independents’, affecting the party’s entitlement to reserved seats in the National Assembly.
As a result, the PTI-backed candidates opted to join the SIC, led by Sahibzada Hamid Raza who had won a seat independently from Faisalabad. However, the SIC had failed to submit its list of candidates for reserved seats by the Commission’s stipulated deadline. Technically, the party had not contested the elections either, as its own leader had won as an independent candidate. Consequently, in its order dated March 1, the Commission rejected the SIC’s subsequent request for the allocation of reserved seats, instead allocating those seats to other parties. The decision was later upheld by the Peshawar High Court.
Although a detailed reasoning is yet to be provided, the Commission’s order revealed several critical issues that demand attention. For starters, at the heart of the controversy lies a fundamental misinterpretation of the Supreme Court’s ruling in the intra-party elections case. Following the verdict, the Commission had erroneously classified PTI candidates as independents, contradicting the court’s intent and disrupting the rightful allocation of reserved seats. By compelling PTI candidates to align with the SIC, the Commission had significantly distorted the electoral process and skewed representation in the National Assembly. Justice Athar Minallah of the Supreme Court highlighted these concerns in his critique of the Commission’s handling of the Supreme Court’s verdict. He pointed out that the Commission’s decision to disqualify PTI from full participation in the elections arose from a flawed understanding of the judgment. This had caused PTI candidates to be unjustly labeled as independents. Thus, the Commission had not only disenfranchised the voters but also undermined the integrity of the electoral process.
The Constitution itself is not stringent regarding the submission of candidates’ lists for reserved seats. In fact, including independents who join political parties after the election when calculating reserved seats through proportional representation means that the Constitution is open to post-election maneuverings in the allocation of these seats. Such situation could lead the judges to declare Section 104 of the Elections Act unconstitutional for being too rigid and violating constitutional intent.
On the other hand, had the Commission’s decision been upheld, the ruling coalition, currently elected with a simple majority, would have crossed the two-third majority threshold in the National Assembly. According to the February general election results for the 266 directly elected seats, Pakistan Tehreek-e-Insaf (PTI) secured 93 seats, PMLN obtained 75 seats, PPP won 54 seats and the remaining seats went to other political parties and independent candidates. The minimum number of seats required to form a two-third majority is 224. Without the extra seats, the ruling coalition stands at 209. With them, it reaches 228, which is enough to enable the ruling majority to amend the Constitution.
The alternative scenario represented a direct assault on democracy and would have set a dangerous precedent by making the Constitution vulnerable to amendments by a group lacking the full mandate of the people. Such an outcome would have undermined the democratic principles upon which the nation has been built. By declaring the Commission’s order as ultra vires to the Constitution, the Supreme Court has relieved the under-siege democracy in the country and has shown itself to be a ray of hope in these dark times. The recent ruling will be etched into the constitutional and political history of Pakistan.
References
[1] Chief Election Commissioner, ECP v. Salman Akram Raja, PTI
[2] The Constitution of Pakistan (1973)
[3] The Elections Act 2017
[4] Civil Petition No. 42 of 2024
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