The Supreme Court has handed a major legal victory to the Pakistan Tehreek-e-Insaf (PTI) party of former Prime Minister Imran Khan, declaring it eligible for a share of reserved seats in national and provincial assemblies.
The judgement, announced on Friday by a 13-member bench in an 8-5 ruling, dealt a significant setback to the coalition government.
The case was filed by the Sunni Ittehad Council (SIC), a political party that PTI-backed candidates had joined after the February 8 general elections, which they were compelled to contest as independents.
The verdict was announced by a 13-member bench of the top court, headed by Chief Justice Qazi Faez Isa.
A day ago, the court had reserved its decision on the matter after closing the hearing on a set of appeals moved by the Sunni Ittehad Council (SIC) against the denial of reserved seats for women and non-Muslims to it by the Peshawar High Court (PHC) and the Election Commission of Pakistan(ECP).
PTI-backed candidates, who had contested and won the February 8 elections as independents after their party was stripped of its election symbol, had joined the SIC to form a coalition of convenience.
The top court on Friday annulled the decision of the PHC while also declaring the decision of the election regulator null and void, terming it against the Constitution of Pakistan.
The PTI, led by Khan, who has been in jail since August due to criminal cases filed against him, was denied the right by the Election Commission of Pakistan (ECP) to contest the elections under its electoral symbol, a cricket bat, due to electoral law violations.
Consequently, PTI candidates had to run as independents, yet they surprised observers by winning 93 seats in the National Assembly – more than any other party. The Pakistan Muslim League-Nawaz (PMLN) came second with 75 seats, and the Pakistan People’s Party (PPP) was third with 54 seats.
After Khan’s refusal to join hands with any of his rivals, the PMLN and PPP agreed to form a coalition government with other smaller parties.
Under Pakistani law, 266 National Assembly seats are chosen in the general election, and 70 additional reserved seats (60 for women and 10 for minorities) are distributed to political parties based on their election performance. A total of 169 seats is required for a simple majority to form a government with a two-thirds majority of 224 votes necessary to pass constitutional amendments.
In its short order on Friday, the Supreme Court recognised the PTI as a political party and affirmed that not having an election symbol does not affect a party’s legal rights to field candidates.
“The notifications of various dates, whereby the persons respectively mentioned therein, being the persons identified in the commission’s notification, dated 13th of May, 2024, have been declared to be returned candidates for reserved seats for women and minorities in the national and provincial assemblies, are declared to be ultra vires to the Constitution, without lawful authority and of no legal effect, and are quashed from 6th of May 2024 onwards, being the date an interim order was made by the court in CPLA no. 13289 of 2024, the leave petitions out of which the instant appeals arise.”
The verdict also declared that “the lack or denial of an election symbol does not in any manner affect the constitutional and legal rights of a political party to participate in an election (whether general or by) and to field candidates and the Commission is under a constitutional duty to act, and construe and apply all statutory provisions, accordingly.”
The verdict further declared that “for purposes, and within the meaning, of paragraphs (d) and (e) of clause (6) of Article 51 (“Article 51 Provisions”) and paragraph (c) of clause (3) of Article 106 (“Article 106 Provisions”) of the Constitution, the Pakistan Tehreek e Insaf (“PTI”) was and is a political party, which secured or won (the two terms being interchangeable) general seats in the National and Provincial Assemblies in the General Elections of 2024.”
It also said that in the 2024 General Election, 39 candidates from PTI were confirmed as elected members according to Article 51 Provisions.
“In the peculiar facts and circumstances of the General Election of 2024, it is declared that out of the aforesaid 80 returned candidates (now MNAs) those (being 39 in all and whose particulars are set out in Annex A to this Order) in respect of whom the Commission has shown “PTI” in any one of the aforesaid columns in the List, were and are the returned candidates whose seats were and have been secured by the PTI within the meaning, and for purposes of, para 5 above in relation to the Article 51 Provisions.”
The decision, announced by Justice Mansoor Ali Shah, was made based on a majority of eight judges.
The majority verdict was given by Justice Mansoor Ali Shah, Justice Shahid Waheed, Justice Ayesha Malik, Justice Irfan Saadat, Justice Athar Minallah, Justice Muneeb Akhtar, Justice Hasan Azhar Rizvi, and Justice Muhammad Ali Mazhar.
PTI leader and former KP finance minister Taimur Khan Jhagra congratulated Imran Khan and PTI supporters on the Supreme Court’s decision.
“We are on the right side of history, as difficult as that may be. The fight will go on,” he wrote on X, adding that there were “serious questions on the malafide intent” of the ECP.
Imran Khan’s former aide Fawad Chaudhry echoed the party account’s sentiments, also demanding the resignation of the chief election commissioner in a post on X. He said the PTI should “demand ECP resignation after SCP has now official charge-sheeted ECP”.
‘Matter gone beyond interpretation’: law minister
Law Minister Azam Nazeer Tarar, while speaking to the press, said that the SC had the authority to interpret the law, however, the matter had gone beyond interpretation.
“It seems as if Articles 51 and 106 [of the Constitution] have been rewritten. New things have been added to it which — as a student of the constitution — is difficult for me to digest,” Tarar said.
He said that the court’s decision would be respected by his party but as a lawyer and the law minister, the wording of the short order was blatantly against the “plain reading” of the Constitution.
“If you read the Constitution simply then it [the short order] is the opposite of it,” he added.
The reserved seats issue
In a 4-1 verdict in March, the Election Commission of Pakistan (ECP) had ruled that the SIC was 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”.
The commission had also decided to distribute the seats among other parliamentary parties, with the PML-N and the PPP becoming major beneficiaries with 16 and five additional seats while the Jamiat Ulema-i-Islam Fazl (JUI-F) was given four. Meanwhile, the verdict was rejected by the PTI as unconstitutional.
Later the same month, while ruling on an SIC plea, the Peshawar High Court (PHC) had dismissed an SIC plea challenging the ECP decision and denied it reserved seats.
In April, the SIC filed a petition before the SC— moved by party chief Sahibzada Hamid Raza — seeking to set aside the PHC judgment.
The apex court on May 6 had suspended the March 14 PHC judgment as well as the March 1 ECP decision to deprive the SIC of seats reserved for women and minorities.
The SC had also ordered placing the present petitions before the three-judge committee that determines the constitution of the bench for the reconstitution of a larger bench when Attorney General for Pakistan Mansoor Usman Awan highlighted that under Section 4 of the Supreme Court (Practice and Procedure) Act 2023, the present case should be heard by a larger bench since the issue concerns the interpretation of constitutional provisions.
The ECP subsequently suspended victory notifications of as many as 77 members of the national and provincial assemblies elected on those seats.
The suspended lawmakers include 44 from PML-N, 15 from PPP, 13 from JUI-F and one each from PML-Q, IPP, PTI-P, MQM-P and ANP.
Resultantly, the ruling coalition lost a two-thirds majority in the lower house of Parliament for now, with its numerical strength shrinking to 209 from 228. In the House of 336, the magic figure to attain a two-thirds majority comes to 224.
The PML-N’s strength in the House has reduced from 121 to 107 while PPP’s from 72 to 67.
Those suspended include 22 members of the National Assembly elected on reserved seats for women and minorities. They include 14 from PML-N, five from PPP and three from JUI-F.
Headed by the CJP, a full court meeting on Wednesday had considered various aspects of the controversy at length since the case is of first impression and will have a far-reaching impact on the allotment of the reserved seats among political parties in the legislature in the future as well.
The real controversy before the court was how to deal with the reserved seats if they are neither doled out to other parties having a presence in Parliament and provincial assemblies nor allotted to the SIC that did not contest the Feb 8 general elections and thus failed to secure a single seat — a legal requirement for the allotment of reserved seats according to the ECP.
The SIC, however, argued that under the concept of a proportionate representation system, it was not a constitutional requirement for the allocation of reserved seats that a political party having general seats in the assemblies had contested the general elections.
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