The politics of reserved seats

The allocation of reserved seats to political parties and the ensuing litigation, which has continued for the past one and a half years, requires a deeper analysis of the constitutional and legal provisions, as well as the objective of these reserved seats within the constitutional and electoral framework.

These reserved seats are seriously undermining the democratic and legislative process in Pakistan, as they fail to reflect the will of the people. They are in no way promoting the underprivileged classes of women and religious minorities for whom these seats were intended, and have instead become a tool for obtaining legislative majorities and achieving specific agendas.

The national and provincial assemblies are the people's houses, modelled on the Westminster system of the House of Commons, representing the will of the people and elected through direct vote. In Pakistan, approximately 20% (70 seats) of the National Assembly and 156 seats in the provincial assemblies (PAs) are filled indirectly through party lists, under the guise of reserved seats for women and minorities. This changes the constitutional scheme and raison d’être of these people’s assemblies.

The objective of these reserved seats was to protect and promote underprivileged classes identified by the constitution-makers in the context of prevailing social and economic conditions. However, data shows that the majority of these seats usually go to family members, near and distant relatives of political leaders and party members, and a crop of loyalists attached to these parties, while common citizens are ignored. A genuine party worker is only occasionally given a reserved seat.

The procedure for allocation or election to these seats has also been fundamentally changed, and it has lost even the semblance of indirect elections. By Presidential Order 14 of 1985, the number of these reserved seats for women was merely doubled from 10 to 20, and 10 seats were added for minorities, but the manner of elections thereto remained the same. The Election Commission of Pakistan (ECP), through legislation and rules it has framed, as explained hereinafter, has the final say in matters related to reserved seats.

Constitutional and legislative changes introduced in this area of electoral law, when closely analysed, reveal a pattern whereby all these reserved seats may be allocated to parties favoured by the ECP, which can, at will, exclude a political party from the electoral process. There have been instances since 2002, when these changes in the law and the constitution were introduced.

The ECP, which is entrusted with the duty of organising and conducting elections, and ensuring that elections are conducted honestly, justly and fairly under Article 218 of the constitution, is now an active litigant in the electoral process — an unprecedented development in common law jurisdictions. Having been granted legislative powers through rule-making authority, and also adjudicatory powers to decide election disputes under the Election Act, 2017, as well as on references from the speaker(s) of the national and provincial assemblies under Articles 63 and 63A, the ECP has become so powerful that it now controls the entire electoral and democratic process in Pakistan.

The appointment of a permanent commission with a tenure of five years, as opposed to an ad-hoc commission under the original constitution, has also created its own hazards for the democratic process. The ECP claims constitutional status and, over time, has assumed vast powers that have proven counterproductive to the democratic process, as history and events demonstrate.

Under the earlier constitutions of 1956 and 1962, reserved seats for women were secured through separate women’s exclusive constituencies. There were ten seats for women through women’s exclusive constituencies for a period of 10 years under the 1956 constitution, and eight seats under the 1962 constitution to be elected in the same manner.

In 1973, when the constitution was made, the people's house/National Assembly comprised 200 seats. Ten seats were reserved for women for ten years or till the second election, whichever occurred later. There were no separate seats for non-Muslims in the National Assembly.

In the provincial assemblies, equivalent to 5% of the seats of a provincial assembly were reserved for women and a very small number of seats were reserved (seven seats: three in Punjab, two in Sindh and one each in Balochistan and erstwhile NWFP) for religious minorities. The manner of elections for these reserved seats was changed from "direct separate electorate" as provided under the earlier constitutions to an indirect election for which members of the provincial assemblies constituted electoral colleges. There was no difference in the election of members of the Senate and reserved seats for women. Members of the provincial assemblies had the single transferable vote in the said election of reserved seats.

From 1973 to 2002, the constitutional scheme remained unchanged. Women now had better qualifications and political parties had even started giving party tickets to women. However, despite a visible change in the educational and social status of women and according to the original constitutional scheme, whereunder reserved seats were to be done away with after ten years of the commencement of the constitution, the number of reserved seats for women was further increased and the manner of elections thereto was also changed.

A corresponding amendment was made to Article 17, whereby intra-party elections became obligatory, and the failure to hold elections disqualified a political party from claiming an election symbol. This was done through the LFO, 2002, and the Political Parties Order, 2002, under which the power to allocate reserved seats on a party basis and grant symbols to political parties was also given to the ECP.

Section 47A of the Representation of People Act, 1976 was also amended. Consequently, as the leadership of the two main political parties were forced to live in exile and no intra-party elections could be held, they were deprived of their election symbols on the pretext of not holding elections. A newly formed political party, which had the blessings of the then regime, won the elections and also got the lion’s share of reserved seats.

In 2010, at the time of the passage of the 18th Amendment, those in charge failed to consider a critical aspect of the matter. They did not fully appreciate the fundamental change introduced in the constitutional and legal framework concerning reserved seats, largely because it suited their political interests. This oversight ignored the constitutional contradictions that arose: the national and provincial assemblies are meant to be directly elected houses of the people, with National Assembly seats allocated to provinces, making members of the provincial assemblies the appropriate electoral college — not political parties and their pre-submitted lists.

They also failed to consider that voters have the option to elect independent candidates in all constituencies. If no political party were to win a seat in any assembly, it could potentially create a constitutional deadlock and yet no preventive measures were taken. The delegation of powers to the ECP to allocate these reserved seats was also in violation of Article 222(a) of the constitution, which clearly stipulates that such matters can only be regulated by parliament, not by rules unilaterally framed by the ECP.

The future of democracy in Pakistan lies in free and fair elections and the rules of a political contest must allow people to express their will freely through their vote. The entire electoral scheme outlined in the constitution and election laws needs to be revisited and purged of the schematic patchwork that undermines democracy in Pakistan. It is time to do away with these reserved seats as they are not serving their real purpose. If these seats are to go to political parties, then what stops these political parties from giving tickets to women and members of religious minorities? These weak legal crutches, designed to help political dwarfs, must be broken.

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The writer is an advocate of the Supreme Court and former additional attorney general for Pakistan. He can be reached at: [email protected]

Originally published in The News