Reserved stakes

The Supreme Court’s live streaming of a landmark constitutional case following the 26th Amendment is a welcome step that strengthens transparency, democratic accountability and legal literacy. For lawyers, scholars and citizens alike, it offers a rare window into how constitutional questions are framed, argued and adjudicated – helping demystify judicial processes and deepen civic understanding.

At the centre of the case is the controversy over the allocation of reserved seats for women and non-Muslims after the general elections held on February 8, 2024. The key question: Can a political party that neither contested the elections on its own symbol nor submitted nomination papers or priority lists for reserved seats be granted such seats based on post-election alignments?

Articles 51(6)(d) and 106(3)(c) of the constitution clearly state that reserved seats are to be proportionately allocated to political parties based on the number of general seats won. The Elections Act, 2017 further operationalises this: Section 104 (as amended in August 2024) restricts eligibility to parties that contested the elections and won at least one general seat. Section 105 requires submission of priority lists before the nomination deadline. Section 106 outlines proportional distribution. Rule 92(6) bars changes to the priority list after the deadline. This framework ensures electoral integrity and accountability.

The Sunni Ittehad Council (SIC) did not contest the 2024 elections on its own symbol, nor did it submit any priority list. After the elections, several independent candidates – previously affiliated with the PTI – joined the SIC. Based on this, the SIC sought reserved seats. The Election Commission of Pakistan (ECP) rejected this request on March 1, a decision upheld by the Peshawar High Court on March 28. The PTI itself did not contest on a common symbol, submit lists, or challenge these decisions, legally disqualifying it from claiming reserved seats.

The SIC appealed to the Supreme Court under Article 185(3). On July 12, 2024, by an 8–5 majority, the court awarded the reserved seats despite unanimously rejecting the SIC’s original claim. The court’s decision overlooked clear constitutional and legal provisions, instead invoking Articles 17(2) and 187. A detailed judgment issued on September 22 upheld the July order by the same 8–5 split.

Following the Supreme Court’s detailed judgment of September 22, 2024, several political parties and the ECP filed review petitions, challenging the majority ruling. They argued that the judgment effectively rewrote constitutional and electoral laws, an act beyond the judiciary’s mandate under Article 175(2) of the constitution. A 13-member bench is now hearing the review petitions. While two judges have already dismissed them, the remaining 11 are deliberating. The case outcome will have far-reaching implications for electoral law, separation of powers and judicial restraint.

Though Article 187(1) allows the Supreme Court to do “complete justice”, it must be interpreted in harmony with Article 175(2), which confines the judiciary to limits set by law and the constitution. Likewise, Article 17(2)’s guarantee to form or join political parties is subject to legal restrictions and cannot override clear constitutional provisions, particularly Articles 51 and , the Elections Act, 2017. These laws condition eligibility for reserved seats on pre-election compliance, not post-election alignments.

The September 22 judgment suffers from serious constitutional flaws. It disregards the constitution’s plain text and statutory mechanisms, weakens electoral clarity, and departs from the court’s own precedents. In previous rulings – on Article 62(1)(f), the Practice and Procedure Act 2023, Article 63A, the Military Courts case, and the NAB Amendment case – the Supreme Court upheld fidelity to the constitution, judicial restraint and legislative supremacy.

The 8–5 split has fractured judicial consensus and unsettled electoral jurisprudence. Concerns over judicial overreach, neutrality and procedural fairness are mounting. A reconsideration by a full Constitutional Bench is necessary to restore institutional credibility. This review should reaffirm that only parties contesting elections, submitting valid priority lists, and winning general seats are entitled to reserved seats – upholding the integrity of Articles 51, 106, Section 104 of the Elections Act and Rule 94 of the Election Rules 2017.

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 the allocation of reserved seats in the national and provincial assemblies. It was also 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.

It is very relevant to state here that the constitution and election laws explicitly require contesting and winning general seats, coupled with prior submission of priority lists, as prerequisites for eligibility to reserved seats, therefore Articles 17 and 187 cannot override the express constitutional commands of Articles 51 and 106, nor can they be employed to create post-election entitlements judicially. Nonetheless, even the highest court 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, the judgment on the Supreme Court (Practice and Procedure) Act, as well as the decisions in the military courts and NAB amendment cases, the Honourable Supreme Court will once again recognise the constitutional boundaries of its jurisdiction and uphold rule of law through a structured, reasoned and judicially restrained adjudication.

The time is ripe for a principled constitutional reset that respects legislative supremacy, honours electoral integrity and affirms that constitutional entitlements cannot be claimed through post-election manoeuvring 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 practising advocate of the Supreme Court of Pakistan with 25 years of legal standing. He can be reached at: hafizahsaan47@gmail.com