S M ATTIQUE SHAH, J. Through this single judgment, we propose to decide the present Writ Petition No. 1272-P/2024 and the connected Writ Petition No.1339-P/2024 as both carry common questions of law and facts. Sunni Ittehad Council "SIC" etc/petitioners have asked for issuance of an appropriate writ for declaring that order dated 01.03.2024 of the worthy Election, Commission of Pakistan ("ECP"), rendered in the cases relating to the seats reserved for women and non-Muslims in the National and Provincial Assemblies, being nullity in the eye of law, is of no legal effect whatsoever. The order ibid purportedly declined the allocation of reserved seats to the petitioners and instead were allocated to other political parties. The petitioners have also asked for the issuance of an appropriate writ to direct the worthy ECP to allocate the ibid reserved seats to them on the basis of their strength in the National and Provincial Assemblies and also to issue election schedule for filling of those seats in accordance with law. Additionally, they have also challenged the vires of section 104 of the Elections Act, 2017 ("Act, 2017") on the ground of being ultra vires to the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution").
2. Undeniably, the candidates of Pakistan Tehreek-e-Insaf ("PTI''), after the ECP declared PTI's intra-party election as illegal, contested the general election for National and Provincial Assemblies held on 8th February 2024 as independent candidates and as such they all were notified as independent returned candidates while issuing the Notification dated 16.02.2024 by the ECP. In terms of Article 51 read with Article 106 of the Constitution, an independent returned candidate has to join any political party within three days of the issuance of notification. Accordingly, the independent candidates hacked by PTI opted to join the SIC in the following manner:-- a)National Assembly 86 MNAs b)Punjab Assembly 107 MPAs c)Khyber Pakhtunkhwa Assembly90 MPAs d)Sindh Assembly 09 MPAs After such absorption of the PTI backed independent candidates in SIC, present petitioners through four applications requested the worthy ECP for the allocation of reserved seats in the National and Provincial Assemblies. Initially, out of 226 total seats reserved in National and Provincial Assemblies, the ECP preserved 67 seats for women and 11 seats for non-Muslims (total 78 seats) while the remaining 148 reserved seats were allocated to other political parties and nominations of the returned candidates based on the priority list of the political parties were accordingly issued on 22.02.2024. These applications of the petitioners were taken up as case bearing No.F(14)/2024-Law-II and it was fixed for preliminary hearing on 27.02.2024. Similar applications of other parties viz. MQM-P, PPPP and PML(N) (respondents) filed for allocation of such seats were clubbed along with the aforesaid applications of the petitioners, and were decided together through the impugned order dated 01.03.2024 by the worthy ECP in the following terms:--
33. Therefore, the Commission is of the view that in light of 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 Election Rules, 2017, SIC is not entitled to claim for the quota for reserved seats for women and non- Muslims due to having non-curable legal defects and violation of mandatory provision of submission of party list for reserved seats which is the requirement of law. The request of Petitioner No.1 is rejected and all the other petitioners from Serial Number 2-10 are partially accepted. The seats 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. Office is directed to calculate the quota accordingly.
Being aggrieved of the decision, the petitioners have filed the present petition.
3. The Division Bench of this court took: up the matter for hearing on 06.03.2024. After hearing the preliminary arguments of the learned counsel for the petitioners, the Bench formulated certain questions to be determined by the Court and put the learned Attorney General for Pakistan and learned Advocate General, Khyber Pakhtunkhwa on notice in terms of Order XXVII-A of the C.P.C. It also referred the matter to the worthy Chief Justice for the constitution of a larger bench as the case involved adjudication of intricate constitutional questions. With the approval of the worthy Chief Justice, the present Bench has been constituted.
Contentions of learned counsel for SIC
4. Barrister Ali Zafar, representing the petitioners, began his arguments by presenting a brief recap of the events leading to the instant petition. He reiterated that against the entitlement of the petitioner (SIC) six applications by different persons were filed with the ECP. The issues raised were that the SIC is not a political, party, and thus, not entitled to claim reserve seats. The ECP proceeded in the matter under Section 04 of the Elections Act, 2017 to decide whether reserve seats could be allocated to SIC when it had neither contested the election as a political party, and nor did it file its list of candidates. A second limb of the contention before the ECP was the treatment to be meted out to reserved seats of which the SIC was found not entitled, if so found.
The ECP, in its order of 04/03/24, through a unanimous verdict of 05 members found against the petitioner and held that it was not a party, therefore it could not claim reserved seats. On the question of the treatment to be meted out to the reserved seats, a 04 to 01 majority held that these seats should be distributed among other political parties contending for it. Instant petition impugns the order, and additionally, challenges the vires of Section 104 of the Elections Act, in case the court is inclined to treat its interpretation by the ECP as the only valid or possible interpretation. However, if section 104 is harmonized with Article 51, then it might find an acceptable place in the fold of legality.
Having thus paraphrased the controversy for the court, learned counsel requested the bench to visit the questions it had framed in its previous order sheet. The questions were about jurisdiction of the court, standing of the petitioner, its claim for reserved seats in view of Article 51 read with Article 106 of the Constitution of Islamic Republic of Pakistan "Constitution" and section 104 of the Elections Act, 2017 "The Act" and whether non-filing of list of candidates by SIC within the time frame provided under section 104 of the Act for reserved seats was a curable defect in law?
Learned counsel formally began his arguments on the issues enlisted above by first addressing himself to status of SIC as a political party. He submitted that any party enlisted with the ECP under the Elections Act, 2017 was a political party, and since SIC met the criterion of a registered political party as defined in the Act of 2017, hence being a political party for the purpose. Learned Counsel then proceeded to enumerate the legally established objectives that a political party could have such as contesting an election, forming an association, to propagate a political opinion, to go to the electorate for election, sit in opposition or form a government, and so forth. The counsel pointed out that the ECP, in its interpretation of the term, resorted to restrictive definition, and thus erred.
Learned counsel next addressed himself to the rights of a political party under Article 17(2) of the Constitution. He argued that in multiple famous cases such Maulana Maududi's, Benazir's, Nawaz Sharif's case, and recently in the Bat-Symbol case, it has been held that it is the fundamental right of a person to participate in election, form a party or join one. That this right invests a person/party with penumbra rights to political activity without which the entire concept of representative governance is meaningless.
He further added that in the recent case of Mr. Pervez Elahi, it was held that a party exists in and outside the parliament. Its members in the house form its parliamentary wing, and those out of it, its political wing.
Learned counsel placed reliance and drew strength from judgments reported as Benazir Bhutto v.
FOP 1988, Benazir Bhutto v. FOP 1989, Nawaz Sharif v. President of Pakistan 1993, and SCBA v. FOP 2023: He again reiterated his observation that the ECP had confused the concept of political and parliamentary party in its decision presently impugned.
After that the counsel briefly visited the principles of interpretation significant for constitutional matters, and relevant to the case at hand. He argued that substantive provisions were to be construed in a manner so that it subsumed all ancillary matters falling under its influence. That provisions of the constitution and law were to be read to achieve a harmony of the constitution internally, and of the law with it. That the Constitution must.be interpreted in the most expansive way, with due regard for its purpose and normative intent through a dynamic, progressive and expansive approach. He concluded his submissions on interpretation by stating that a penal provision is to be construed strictly, rather than liberally. For his arguments on the point of interpretation, the counsel has relied on Sui Southern Gas Ltd. v. FOP 2018, Government of Sindh v.
Dr Nadim Rizvi 2020, Dosso v. Stare 1957, F.B. Ali v. The State 1975. I.A. Shersvani v. Government of Pakistan 1991, Al-Jehad Trust v. FOP 1996, Masror Ahzan v. Ardeshar Cowasjee 1998, and Wukula Mahaz Barai Tahafuz Dastoor v. FOP 1998.
The counsel further maintained that Article 51(6)(e) mandate that an independent joining a political party should be deemed as a seat won by the party. That accordingly, independent candidates joining SIC might be seen and received as seats won by SIC. He concluded by stating that section 104 of the Act placed no bar on demand for a list of candidates for reserved seats at a belated stage, and that the justice that was expected of the ECP under sections 4(1) and 4(3) of the Act might be done now.
Attorney General for Pakistan and learned counsel representing the ECP.
5. Learned Attorney General began his submissions by reducing the controversy to two essential points: whether the petitioner was entitled to reserved seats under Article 51; if the answer was in the negative, what would be the manner of its allocation amongst the political parties; securing general seats in the National Assembly.
Learned AG took the court on a brief but useful tour of the nature of our parliamentary system that it is a mixed and proportional representation system in that seats are open and reserved, and the latter are elected in proportion of the former.
The AG formally began his arguments of the matter by posing a query as to whether a party that had not contested the election and was now joined by independents, could claim and receive share out of the reserved seats.
He took the court briefly back to the distinction between a political party and a parliamentary party that members of a political party inside, the parliament forms its parliamentary wing, and outside the parliament, its political wing.
He argued that in law as well as in parliamentary democracy, a political party, regardless of its manifesto, was formed for one purpose that was to participate in the election. Petitioner is a political party in the sense that it is registered with the Election Commission, but since it neither participated in the election nor won a general seat, it was not a party for the instant purpose.
About the application of the mandate of Article 51 to the claim of the petitioner, the worthy AG submitted that the article mandated that a party must have won seat(s) in the assembly to qualify for the claim to reserved seats. That the proviso then says that in addition to the seats won in the general election, can the party claim the independents, and on their numerical strength, a portion of the seats reserved for women and minorities.
He added that presence of a political party in the parliament can necessarily take place only when such political party had participated in the electoral process.
Learned AG emphasized the point that a political party that refuses to participate or chooses not to participate in general election cannot subsequently contest for reserve seat. Article 51(6)(d) and sub -section (1) of section 104 do not conceive of a political party claiming reserved seats without having participated in election.
He emphasized that Article 51(6)(d) says proportional representation on political parties list.
Clearly, he argues, the article envisages for a party having submitted a list, and not a party who never took part in the election. In a mixed representation system, the parties offer their candidates for general election to the electorate. They are also offering the candidates who are on their list that they will also become member of the parliament and be making laws for the electorate. The candidates go through the scrutiny so nearly as possible as the candidates of general seats do, and such lists are then published before the general public/voter.
If a political party chose not to submit a list at all, it can only mean one thing which is that the party was not expecting to win any number of general seats which would entitle it to the reserved seat.
About the question of whether seats could be left vacant, the learned counsel Mr. Sikandar Bashir representing the worthy ECP assisted the court that the Constitution did not envisage vacancy, except under clause (4) of Article 224 when a, seat falls vacant within 120-days of the completion of the term of the assembly. If the SIC is found not entitled to the reserved seats for the reasons above, the independent candidates, should stand excluded from the total number of general seats in the National Assembly for the purpose of determination of share of each political party for reserve seats. In support of his submissions, the learned counsel for the ECP has referred to sub- Rule (2) of Rule 94 and Rule 95 of the Election Rules, 2017.
Learned counsels for the Private-Respondents.
6. Messrs Farooq H. Naek learned Senior Counsel of Supreme Court of Pakistan, Barrister Hans Azmat, Muhammad Tariq Afridi, Amir Javed, Naveed Akhtar, Qazi Jawad Ehsanullah, Tariq Khan Afridi, Lajbar Khan Khalil Advocates, have addressed the main arguments. Learned counsel graciously walked the court through a paraphrased reading of Article 51. They explained that the constitutional scheme envisages two kinds of proportional representation i.e. on the basis of population for a general seat, and on the basis of representation in the assembly for reserved seats. They further added that general election is population based, whereas for the reserved seat of women and non-Muslims, the number of seats allocated in the National Assembly for each province and the country is constituency, respectively.
Learned counsel remarked that election was provided for, governed by, and conducted under Article 51 and in accordance with the Elections Act of 2017. Election was to be conducted in accordance with law through proportional representation system of political parties list. Reserved seats were to be allocated on the basis of total number of general scats secured by each party from the province concerned in the National Assembly. First and the foremost is a list, when it is submitted, then, on the basis of number of general seats secured in the National Assembly, the reserved seats were to be allocated.
They concluded that the petitioner SIC did not win any general seat in National Assembly, nor did it submit its list for reserved seats, so the question of eligibility for securing independents or reserved seats did not arise.
The learned counsel for respondent No.4 requested the court for examination of jurisdiction for the matter. He argued that this Court lacks territorial jurisdiction to adjudicate upon the matter. Further, that parallel petitions impugning the same order of ECP are pending before High Courts of Sindh and Punjab. That to avoid conflicting findings, and for propriety, the best forum for the matter was the Apex Court, else the Islamabad High Court on territorial grounds. Placed reliance on Hassan Shahjehan v. FPSC 2017 to bolster the contentions.
He further added that since no list was furnished nor priority of candidates was conveyed to the ECP till date, the question of entitlement to reserved seats did not arise.
7. Heard. Record perused.
8. From the aforesaid legal discourse, the following questions cropped up for determination of this Court.
1. Territorial Jurisdiction.
2. Whether SIC, a listed political party with a duly assigned election symbol but opted not to contest the election, can, now, when PTI backed independent candidates have Joined it, claim a share in the seats reserved for women?
3. What if we hold that SIC is not entitled to reserved seats for women and non-Muslims, then the allocations of reserved seats by the Election Commission amongst the political parties present in the Parliament were in accordance with the letter of the Constitution?
4. Vires of section 104 of the Elections Act, 2017.
Territorial jurisdiction.
9. Determination of jurisdiction is the first step of any/all adjudications. A similarly structured question about territorial jurisdiction came up before the Apex Court in the case of Asghar Hussain[1]. The High Court of East Pakistan had dismissed a petition that impugned an order of the Tribunal/EC in respect of provincial constituency of East Pakistan. The august Apex Court allowed the appeal against the judgment of the High Court of East Pakistan in the following manner (terms):- "the decision given by the High Court of East Pakistan that it has no jurisdiction to issue a writ or a direction to the election Commission of Pakistan is thus unreasonable in law from every point of view. The election Commission is "a person" or "authority" which exercises in the Province of East Pakistan functions in connection with their affairs of the Centre namely, election to the office of President, National Assembly and the Provincial Assemblies and for holding a Referendum as provided for in the Constitution. In that, the Commission is subject to the jurisdiction of High Court under Article 98(2)(a)(i) notwithstanding that its main office and secretariat are located in the Province of West Pakistan".
Likewise, in the case of Federal Government[2], the Sindh High Court was approached against a notification of the Federal Government whereby, on the recommendation of the Punjab Government, Ms. Ayan Ali, was prevented from departure at Karachi Airport for being enlisted in the Exit Control List. The matter eventually arrived at the Apex Court who in the aforesaid judgment rejected the arguments of the Federal Government relating to the territorial jurisdiction of Sindh High Court by relying upon the LPG's case and held as under:- "as regard the question of territorial jurisdiction, it hardly need emphasis that the impugned notification/memorandum has been Issued by the Federal Government which functions all over the country and since the respondent No.1 resides in the Karachi and has a right and choice to proceed abroad through Jinnah International Airport Karachi and in fact at least twice earlier she had proceeded to go abroad through Jinnah International Airport Karachi, though She was stopped owing to the earlier notification/memorandum and therefore, the embargo placed on her leaving the country has in fact taken place at Karachi, which prevention in all likelihood was to be repeated at Karachi in pursuance of the third notification/memorandum and thus giving rise to a cause of action against a third notification/memorandum at Karachi because of its taking effect there. It is now well settled that the Federal Government, though may have exclusive residence or location at Islamabad would still be deemed Junction all over the country".
In the case of Messrs Al Iblagh limited[3] issue of territorial jurisdiction of the High Court was tackled in the following manner: - "The Central Government has set no a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such a person, jurisdiction to hear the case.
It was further observed that: - "We agree and are of the opinion that both the Lahore High Court as well as the Sindh High Court had concurrent jurisdiction in the matter and both the Courts could have entertained a Writ Petition against the impugned orders in the circumstances of this case. We, therefore, hold that the Lahore High Court has illegally refused to exercise jurisdiction in this case. The case will, therefore, go back to the Lahore High Court for the decision of the Writ Petition filed by the appellant before it for decision on merits, in accordance with law".
In the case of LPG Association of Pakistan through Chairman[4] the territorial jurisdiction of Hon'ble Lahore High Court was questioned on the ground that the contesting respondents were functioning at Islamabad; while the impugned notice had also been issued by the Commission at Islamabad and, as such, Hon'ble Lahore High Court had no jurisdiction to entertain the petition: However, Hon'ble Lahore High Court rejected the objection in the following terms:--
6. From the judgments cited at the Bar on both the sides, the portions whereof have been extensively reproduced, the following ratio is deducible.--
(A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in any of the Provinces, shall still be deemed to function all over the country.
(B) If such government, body or authority passes any order or initiates an action at Islamabad, but it affects the "aggrieved party" at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him.
(C) This shall be more so in the cases where a party is aggrieved or a legislative instrument (including any rules, etc) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property; profession, association etc, and any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected: In this context, illustrations can be given, that if some duty/tax has been imposed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is maintaining the account at Lahore, though the Act/law has been passed at Islamabad, yet his right being affected where he maintains the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad; this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two High Courts.
(D) On account of the above, both the Islamabad and Lahore High Courts shall have the concurrent jurisdiction in certain matters and it shall not be legally sound or valid to hold that as the Federal Government etc. resides in Islamabad, and operates from there; the assailed order/action has also emanated from Islamabad, therefore, it is only the Capital High Court which shall possess the jurisdiction. The dominant purpose in such a situation shall be irrelevant, rather on account of the rule of choice, the plaintiff/petitioner shall have the right to choose the forum of his convenience".
10. After thoroughly examining the above-referred case law, we have come to the conclusion that an action of a constitutional or federal authority that affects a person or group of persons in a particular province, can be challenged in the High Court of the Province where the cause of action arose, or the effect was received/suffered, regardless of the location of the head-office of such authority. Therefore, we hold that this court has the jurisdiction to entertain the instant petitions. As for the contention/request. of the learned counsel for ECP that the petitioners be required to choose/elect one of his three petitions currently pending before different High Courts, we understand that it is for the respective High Court(s) to decide whether to proceed with the petition or not. We deem it appropriate to refrain from demanding such election/choice lest it should prejudice the cause of either party before other honorable High Courts.
Whether SIC, a listed political party with a duly assigned election symbol but opted not to contest the election, can, now, when PTI backed independent candidates have joined it, claim a share in the seats reserved for women?
11. To be precise, SIC is a registered/listed political party, which did not contest elections or win a seat, was subsequently joined by PTI backed independent candidates, and has now laid claim under Article 51 of the Constitution to a share in the reserved seats. The question of its entitlement pivots around the concepts of parliamentary democracy, political and parliamentary party, and, naturally, on the correct interpretation of Article 51.
At this juncture, we opt to refer brief overview of the principle of parliamentary democracy as embedded in the Constitution. Parliamentary democracy runs through the Constitution like a red thread that is clearly observable in all provisions dealing with the form of Government. In the very preamble to the Constitution, it is explicitly held that formation of this Constitutional order is will of the people, sovereignty is a sacred trust, and authority is to be exercised by state through the chosen representatives of the people.
The worthy Apex Court has on multiple occasions expounded, upheld, and emphasized parliamentary form of our government as a Salient Feature of the Constitution. In the case of District Bar Association Rawalpindi[5], the Apex Court observed: 'While dwelling on the issue of basic features or basic structure of the Constitution I may add that if at all I were to accept the theory of basic features then l would recognize basic features of the aspirations of the people or society and stop short of considering them as basic features or basic structure of the Constitution so as to apply the legal theory attached with that concept. I would also draw a distinction between basic aspirations of the people and the modalities or methodologies for achieving such aspirations contained in a Constitution.'
At another place, in the same judgment, the Court observed: "In the constitutional scheme, the people, while electing their representatives, invested such representatives with all the legislative and constitutional powers to be exercised on their behalf and did not reserve right to be consulted before exercise of such powers, irrespective of the gravity of the issue involved. Such investment and delegation of authority by the people in favor of their elected representatives was clearly borne out from the preamble to the constitution itself After electing their representatives, the people have exhausted their sovereignty and for the ensuing term of the parliament".
Our parliamentary system; as outlined above is a party based system, in which political parties, after being admitted to the Assembly through elections, play a vital role in making of government, as well as a check on the government, while part of opposition. This naturally draw us to briefly describe the nature, role, and functions of a political party under the law and Constitution.
After having set up the nature of the Government in its preamble, the Constitution proceeds to spell out its key player i.e. political party, in its chapter on fundamental rights.
12. Article 17(2) confers a fundamental right on citizens, other than those in the service of Pakistan, "to form or be a member of a political party". The Constitution guarantees the rights of the citizens ''to form a political party" to be its member, to propagate its constitution qua informing and influencing political opinion and participating in elections for the membership of legislative bodies, and to form Government on attaining the requisite majority in legislative assemblies.
The bare reading of article imparts that the central role in our constitutional parliamentary setup is assigned to political parties. The Apex Court in multiple pronouncements has underscored the role, significance, and functions of political parties.
In the case of Benazir Bhutto[6] the vires of several provisions of the Political Parties Act, 1962 and the Freedom of Association Order, 1978 were challenged. The matter was heard by the Full Court and the worthy Chief Justice (Muhammad Haleem, CJ), as then he was, in his judgment observed as follows (emphasis supplied; pp. 515- 20): "A political party has its significance in the context of the political system provided by the Constitution. Our Constitution is of the pattern of Parliamentary democracy with a Cabinet system based on party system as essentially it is composed of the representatives of a party which is in majority....
Political Parties, thus, provide leadership to public offices through the elections. They are a necessary part of a democratic government. Moreover, plurality of parties make elections meaningful by giving the voters a choice among candidates with different interests and political perspectives.[7]
13. The Election, inclusive of its process, is a gateway into the parliament for a political party which, by offering its political programme to the electorate, and by winning their vote and support, can get itself a seat(s) in the Assembly. The party with highest number of seats in the Assembly has a right to form Government and drive the destiny of the people.
The significance of a party in comparison to an individual candidate is emphatically upheld in the case of Abul A'la Maudoodi[8]. The court, while disagreeing with the attorney general observed: "The argument raised by the learned Attorney General that deregistration of a political party does not put an end to its functioning as it can still continue to function like any other political party subject merely to the limitation that it will only not have the right to contest elections as a party, cannot be accepted. Persons elected to the legislature in their personal capacities have hardly any importance. They just toss around on the political scene, rudderless and without a destination.
It is only when they band themselves into a group, as a party, that they become a force exercising some influence by their activities. It is only as members of a political party and not as individual members of the legislature: can they achieve their objectives....
14. It manifests from the above discourse that our constitution provides for a parliamentary form of government in which political parties securing seats in the parliament through elections play the key role in representing the people. In a parliamentary democracy, democratic dispensation of right and authority, in absence of political parties, is barely imaginable. A parliamentary democracy without the participation of political parties would be a myth, and, thus, would offend the basic scheme of the Constitution. It is also sufficiently clear from the forgone, that a political party is a combination or a group of such associations formed with a view to publicize or influence political opinion and participate in elections for an elective public office or membership of a legislative body. Therefore, election contest, and political propagation through its platform are core functions of a political party. Indeed, it is the political party which effectively translates the voice of the people of the country in the Parliament.
15. We shall now advert to the core issue so raised before us, the third and central limb of the question that is the claim of SIC under Article 51 to a share of reserved seats. The article provides for the composition of the National Assembly and allocation of seats reserved for women and non- Muslim to the respective political parties. For ease of reference, Article 51 of the Constitution reads as under:-
51. (1) There shall be [three hundred and thirty-six] seats for members in the National Assembly, including seats reserved for women and non-Muslims.
(2) A person shall be entitled to vote if.
(a) he is a citizen of Pakistan;
(b) he is not less than eighteen years of age;
(c) his name appears on the electoral roll; and
(d) he is not declared by a competent court to be unsound mind.
(3) the seats in the National Assembly referred to in clause (I), except the seats mentioned in clause (4), shall be allocated to each Province and the Federal Capital as under:- General SeatsWomen SeatsTotal Seats Balochistan 16 4 20 Khyber Pakhtunkhwa 45 10 55 Punjab 141 32 173 Sindh 61 14 75 Federal Capital 3 - 3 Total 266 60 326 ('3A) Notwithstanding anything contained in clause (3) or any other law for the time being in force, the members of the National Assembly from the Federally Administered Tribal Areas to be elected in the general elections, 2018 shall continue till dissolution of the National Assembly and thereafter this clause shall stand omitted.
(4) In addition to the number of seats referred to in clause (3), there shall be, in the National Assembly, ten seats reserved for non-Muslims.
(5) The seats in the National Assembly shall be allocated to each province and the Federal Capital on the basis of population in accordance with the last preceding census officially published: Provided that for purposes of the next general elections to be held in 2018 and bye-elections related thereto, the allocation shall be made on the basis of provisional results of the 2017 census which shall be published by the Federal Government.
(6) For the purpose of election to the National Assembly,--
(a) the constituencies for the general seats shall be single member territorial constituencies and the members to fill such seats shall be elected by direct and free vote in accordance with law;
(b) each province shall be a single constituency for all seats reserved for women which are allocated to the respective Provinces under clause (3);
(c) the constituency for all seats reserved for non-Muslims shall be the whole country;
(d) members to the seats reserved for women which are allocated to a Province under clause (3) 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 from the Province concerned in the National Assembly: Provided that for the purpose of this paragraph the total number of general seats won by a political party shall include the independent returned candidate or candidates who may duly join such political party within three days of the publication in the official Gazette of the names of the returned candidates; and
(e) members to the seats reserved for non-Muslims 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 won by each political party in the National Assembly: Provided that for the purpose of this paragraph the total number of general seats won by a political party shall include the independent returned candidate or candidates who may duly join such political parry within three days of the publication in the official Gazette of the names of the returned candidates.
The article provides that the Assembly shall be composed of 336 seats, with a varying number of seats, based on population per last preceding census, reserved for women from each province, and 10 seats reserved for non-Muslims of the country.
16. Sub-clause (a) of Clause (6) of Article 51 postulates that constituencies for the general seats shall be single-member territorial constituencies and the members to fill such seats shall be elected by direct and free vote in accordance with law. While Sub-Clause (b); thereof provides that each Province shall be a single constituency for all seats reserved for women which are allocated to the respective Province under Clause (3) of Article 51. Likewise, Clause (6)(c) specifies that the whole country shall be a constituency for all seats reserved for non-Muslims.
17. In order to arrive at a correct reading of the article in presence of competing interpretations provided by both sides, we deem it appropriate to lay down some of the basic principles of constitutional interpretation recommended by the Apex Court in its ruling(s). We draw wisdom from the Apex Court in District Bar Association Rawalpindi's case (supra) wherein the following guidelines were recommended for interpretation of the Constitution.
(a) The Constitution should be read as a whole.
(b) Effect should be given to every word, paragraph, clause and article of the Constitution and redundancy should not be imported thereto.
(c) If there are we two provisions of the Constitution attending to similar matters, the particular provision excludes the general provision.
(d) If there is a conflict between two provisions of the Constitution and one of them was inserted when the Constitution was abrogated, subverted, suspended or held in abeyance then the conflicting provision which was in the Constitution prior to the said abrogation, subversion, suspension or abeyance is to be preferred if it is closer to the provisions of the Preamble.
(e) Parliamentarians, who adorn the House after the promulgation of the 1973 Constitution or will do so in the future, do not have the constituent powers of the first parliamentarians, therefore, they cannot amend the Constitution in a manner that contravenes the provisions of the Preamble to the Constitution, and in particular any amendment that may abolish, take away or abridge any of the fundamental rights of the people.
(f) The Constitution and its Preamble are built on a trichotomy that separates powers between the Legislature, the Executive and the Judiciary, and each one must operate within its respective domain. Thus, whilst the Legislature is fully empowered to make laws or amend the Constitution it is the superior Courts that will ascertain their constitutionality and interpret them because the Constitution itself has empowered them.
18. The moot question before us is the interpretation of Clause 6(d) of Article 51. For ease in analysis, we break it down into its essential components.
Members to the seats reserved for women, which are allocated to a Province under clause (3) "shall be: i. elected in accordance with law; ii. through proportional representation of political parties list of candidates; iii. On the basis of total number of general seats secured by each political party from the Province concerned in the National Assembly.
19.Employing the interpretive guideline(s) produced above i.e. effect should be given to every word, paragraph, clause, and Article of the Constitution, and redundancy should not be imported thereto, Article 51(6)(d) when read in juxtaposition with Clauses (3) and (5) presupposes; that the seats reserved for women in the National Assembly, on the basis of population in each province, are to be allocated amongst political parties contesting for it, and which has a presence among the general members of the National Assembly. This interpretation is further fortified from the proviso to clause (6)(d) of Article 51, which envisages that the total number of general seats won by a political party shall include the independent returned candidates who may join such a political party within three days after the publication of their names in the official gazette as returned candidates. Apparently, the number of general seats of a party includes, but does not exclusively comprise on, the independents, who subsequently join it. Therefore, any party, which does not have any general seat in the National Assembly; prior being joined by independent candidate(s), cannot lay claim to a share in the reserved seats for women. Similar is the position of allocation of seats reserved for non-Muslims.
20.We are in full appreciation of learned counsel representing the SIC that the term political party as occurring in Constitution, particularly in terms of Article 17(2), should be read for a wider meaning. In the present case, it is an admitted fact that after the general elections, the PTI backed independent candidates formed the largest group amongst the contesting political parties in the National Assembly. Neither the petitioner nor the ECP has placed on record any document to show that PTI, submitted its list of candidates for reserved seats in response to ECP's schedule for general election issued twice on 15/12/2023 and then extended to 22/12/2023.
21.We have very minutely read the judgment of the Apex Court of 3rd January 2024, wherein the decision of the ECP refusing Symbol to the PTI was upheld, but found nothing that questions the status of PTI as a political party. Although the PTI backed independent candidates were returned to the National Assembly on the manifesto of PTI, however, neither the petitioner nor the ECP produced any document to show that the ECP had declined request of these candidates for contesting election on a PTI ticket.
22. Moreover, these PTI backed, independent candidates, who won seats in the National Assembly, are not pleading a claim before us today; hence, the arguments of the learned counsel for the SIC are misconceived. In fact, before us is the SIC, which neither contested the election as a political party or win any seat of its own, nor did it have any membership in the National Assembly until PTI backed independents candidates joined it. The reserved seats for women indeed belong to a political party which has contested the Election and has representative presence in the National Assembly. In our opinion, this view and findings would be in consonance with the principle of interpretation of Constitution expounded by the Apex Court in the case of District Bar Association, Rawalpindi (Supra).
What if we hold that SIC is not entitled to reserve seats for women and non-Muslims, then the allocation of reserved seats by the Election Commission amongst the political parties present in the Parliament were in accordance with the letter of the Constitution?
23. As we have held above that the reserved seats for women and non-Muslims belong to a political party, the mandate of sub-clause (d)(6) of 51 of the Constitution is that the said reserved seats should be allocated amongst the political parties present in the National Assembly. The procedure for allocation of the said seats has been provided under section 104 of the Act and the mechanism for its allocation in Rule-92 and Rule-94 of the Election Rules, 2017 ("Rules") respectively. It is provided under section 104 of the Act that for the purpose of Election to seats reserved for women and non-Muslims in the National Assembly, the Political Parties contesting election for such seats shall, within the period specified by the ECP for submission of nomination papers, file a separate list of candidates in order of priority with the ECP, or as it may direct. No change or alteration can be made after the timeline provided by the ECP under section 104 has expired. However, if at any time, the party list, if exhausted, the political party may submit a name for any vacancy which may occur thereafter. Similarly, the mechanism envisaged by the ECP for allocation of the seats to the political parties under Sub-Rule (2) of Rule 94[9] that the per centum share of each political party shall be worked out with reference to total number of general seats in the National Assembly. In calculating the number of seats, the highest fraction shall be taken as a won seat till the allocation of reserved seats in the concerned Assembly is completed.
24. It was the main objection of the learned counsel for the SIC that since SIC enjoys majority of seats for the province Of Khyber Pakhtunkhwa, therefore, the reserved seats proportionate to its numbers in the National Assembly could not be allocated to other parties in excess to their share of reserved seats to which they are entitled on the basis of the general seats they have actually won.
We stand unimpressed by the argument. Article 51 of the Constitution read with Article 224 mandates that the National Assembly shall have 336 seats, and no seat shall be left vacant, excepting the situation when the vacancy arises within the last 120 days of the term of the assembly. The argument advanced by the learned counsel, if accepted, would virtually render redundant the mandate of Article 51 envisaging that the assembly shall have 336 seats and the seats occurring vacant in the manner as provided under Article 224(4) only then shall not be filled.
It was never contemplated by the framers of the Constitution that on account of the eventuality, as before us, any seat of the National Assembly or the Provincial Assemblies shall remain vacant.
Attributing redundancy to constitutional text is against the principle of interpretation.
25. At this juncture, it may be stated that a written Constitution is an organic document designed and intended to cater the needs 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 he dynamic, progressive and oriented with the desire to meet the situation or suppress the mischief, which has arisen, effectively.
The interpretation cannot be narrow and pedantic. But the Court's efforts should be to construe the same broadly, so that it may be able to meet the requirement of ever-changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived from their context.
10.
26. Election Commission is a constitutional body invested with the mandate to conduct Elections to the Assemblies, and to ensure the same is conducted in accordance with the letter of Constitution.
Additionally, it has the jurisdiction under section 4 of the Act to issue such directions or orders as may be necessary for the performance of its functions and duties, including an order for doing complete justice in any matter pending before it. Therefore, the impugned order of the ECP of allocating/distributing the reserved seats for women and non-Muslims 'amongst the political parties that are present in the assembly by securing seats through contest is held to be in accordance with the letter of Article 51 of the Constitution.
Vires of section 104 of the Elections Act, 2017.
27. Section 104 of the Act envisages the procedure for Election of candidates for reserved seats. It has been the contention of the petitioners that since SIC, after having been joined by the PTI backed independent candidates, is the majority party in the National Assembly, therefore, by mere non-filing of the list within the period prescribed by the ECP, it cannot be deprived of its due share of reserved seats by filing the same list at belated stage.
28. Since we have held that SIC is not entitled for any share in the reserved seats for women, therefore, the request for filing list of candidates for reserved seats at a belated stage does not arise. Petitioner has essentially assailed the interpretation of the section as done by the ECP.
Besides, the section is not a substantive provision rather it merely provides a mechanism for effective conduct of election. Other than what has been stated above, the learned counsel did not lay much stress on the vires of the section 104 of the Act of 2017. His objection was mainly on the manner it was interpreted by the ECP allocating the reserved seats to other political parties.
Therefore, the occasion does not arise to declare the said provision contrary to the letter of Constitution.
29. In view of what has been stated above, the instant petitions being devoid of any merit are accordingly dismissed.
1. Asghar Hussain v. Election Commission of Pakistan (PLD 1968 SC 387).
2. The Federal Government v. Ayan Ali and 'hers (2017 SCMR 1179)
3. Messrs Al-lblagh Limited, Lahore v. The Copyright Board Karachi and others (1985 SCMR 758)
4. LOG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources, Islamabad and others (2009 CLD 1498)
5. District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401)
6. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)
7. Supreme Court Bar Association of Pakistan through President and another v. Federation of Pakistan through Ministry of Interior Islamabad and others (PLD 2023 SC 42) and Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416)
8. Abul A'la Mandoodi v. Government of West Pakistan (PLD 1964 SC 673).
9. 94(2) The per centum share of each political party shall be worked out with reference to total number of general seats in the National Assembly, or, as the case may be, the respective Provincial Assembly.
10. Supreme Court Bar Association of Pakistan through President and another v. Federation of Pakistan through Ministry of Interior, Islamabad and others (PLD) 2023 SC 42).