By Hafiz Ahsaan Ahmad Khokhar, Advocate Supreme Court of Pakistan
I. Legal Prelude: The Limits of Judicial Power and the Primacy of the Constitution
The post-election legal controversy arising from Pakistan’s 8 February 2024 general elections has turned into a defining constitutional dispute, with long-term implications for democratic governance and party-based representation. Central to the issue was whether independent candidates—mostly backed by Pakistan Tehreek-e-Insaf (PTI)—could affiliate themselves with the Sunni Ittehad Council (SIC) and, through that affiliation, claim a share in reserved seats for women and non-Muslims in the National and Provincial Assemblies.
This strategy, lacking both constitutional anchoring and statutory legitimacy, culminated in a judicial correction when the Supreme Court of Pakistan, through its majority judgment dated 27 June 2025, unequivocally held that neither PTI nor SIC and its affiliated independents were not entitled to any reserved seats of women and non muslims under Articles 51 and 106 of the Constitution, read with the Elections Act, 2017.
The 27 June ruling reversed and rectified the Court’s earlier 12 July 2024 judgment, which had ventured into constitutional and judicial overreach by disregarding the express textual scheme on the subject in hand of the Constitution. The case affirms that while courts are the final interpreters of the Constitution, they cannot act as its authors or editors—a principle embedded in Article 175(2).
II. The Constitutional and Statutory Framework Governing Reserved Seats
The allocation of reserved seats in Pakistan’s parliamentary structure is not discretionary; it is governed by a constitutionally binding framework and reinforced by statutory procedures:
1. Articles 51(6)(d) and 106(3)(c) of the Constitution make it clear that only political parties which secure general seats in the respective assemblies can receive a proportionate share of reserved seats.
2. Article 52 of the Constitution mandates that independent candidates must declare party affiliation within three days of the official notification of returned candidates—and crucially, only with a party already represented in the Assembly.
3. Sections 57 and 58 of the Elections Act and Rule 94 of the Election Rules, 2017 require that party lists for reserved seats be submitted before the general election. Failure to submit such lists nullifies any claim to reserved seats post-election.
The Sunni Ittehad Council (SIC) failed at all levels:
It did not contest the general elections;
It did not submit any pre-election list for reserved seats;
It had no representation in any legislature.
Its legal standing was thus non-existent. Any claim made by or through SIC was constitutionally void ab initio.
III. PTI’s Strategic and Legal Miscalculation: A Preventable Collapse
In defiance of this clear legal and constitutional architecture, PTI advised or allowed its backed independents to affiliate with SIC, hoping to use it as a post-election proxy to reclaim reserved seats. This approach was not only constitutionally untenable, but tactically disastrous.
PTI could have chosen a legally permissible and constitutionally compliant path:
By having the independent members formally join PTI within the statutory timeframe of Article 51 and Article 106 of the constitution or
By maintaining them as a bloc of independents, retaining PTI’s indirect parliamentary influence or making a parliamentary group,
Instead, PTI:
Did not abel to legally substantiate SIC’s eligibility at any constitutional forum,
Did not seek to have alternate legal strategy to revise or withdraw the declarations of SIC affiliation, when there was a judgment of Peshawar high court 5-0 and
Persisted in defending SIC’s entitlement and claiming political and electoral justice till the Supreme Court review petition proceedings.
The outcome was not merely legally unfavorable—it was structurally devastating, amounting to total forfeiture of reserved seats, a weakening of PTI’s legislative influence, and exposure to further constitutional vulnerabilities.
IV. 12 July 2024 Judgment: A Constitutional Overreach Corrected
The 12 July 2024 judgment of the Supreme Court sought to validate PTI’s entitlement by invoking:
Article 17(2) – the right to form and join political parties, and
Article 187 – the Court’s power to “do complete justice.”
However, this judicial reasoning was flawed:
Article 17(2) is a fundamental right, not a mechanism for overriding structural constitutional provisions like Articles 51 and 106;
Article 187 must be exercised within the constitutional framework, not in derogation of it;
Article 175(2) places a categorical prohibition on the judiciary assuming legislative functions which means that the courts can interpret the constitution and law but not rewrite the constitution.
The 12 July ruling crossed that line by manufacturing a post-election entitlement, where none existed in law.
V. 27 June 2025 Judgment: Restoring Constitutional Discipline and Judicial Restraint
The 10–3 majority decision of 27 June 2025 re-established the primacy of the Constitution and reinstated the correct interpretation of the electoral framework:
SIC was declared not a parliamentary party at any stage of legal proceedings after post election and thus ineligible to receive any reserved seats;
Independent candidates’ declarations under Section 104 were rendered legally inconsequential;
These candidates were to be treated as independents, not subject to Article 63A (defection clause), nor to any party discipline.
The judgment reaffirmed that courts must remain within constitutional limits, and cannot create entitlements based on political exigency. In doing so, it restored constitutional fidelity and corrected a significant judicial misstep.
VI. Constitutional and Parliamentary Fallout: Strategic Isolation and Legislative Weakness
PTI’s flawed approach had both legal and political costs, including:
1. Loss of All Reserved Seats: PTI forfeited dozens of seats in the National Assembly and provincial legislatures—seats that it might have retained through proper legal adherence.
2. Independent Status of Members: The independent legislators, having failed to validly join a parliamentary party, now stand outside any party fold and cannot be disqualified under Article 63A, even if they vote against PTI’s interests.
3. Collapse of Legislative Influence: PTI’s voting power and legislative dominance have significantly diminished, particularly in Khyber Pakhtunkhwa, where the government now faces a viable no-confidence threat.
4. Two-Thirds Majority for the Coalition: The ruling coalition has now secured a two-thirds constitutional majority in the National Assembly, enabling it to initiate or pass constitutional amendments and other politically sensitive legislation without PTI’s involvement or opposition.
VII. A Preventable Setback: A Different Legal Strategy Was Available
This profound constitutional defeat was entirely preventable.
Had PTI adhered to the plain letter of the constitution and law—either by timely and valid affiliation under Section 104 or by retaining the independent status of its supported candidates—it could have preserved its political and constitutional gains. Instead, by embracing a proxy strategy rooted in legal fiction, it suffered a collapse that has both judicially validated and politically disarmed the party.
This miscalculation serves as a cautionary tale on the dangers of prioritizing expediency over legality, and on relying on post-facto judicial remedies to cure pre-election errors.
VIII. Conclusion: Upholding Constitutional Text Over Political Convenience
The 27 June 2025 Supreme Court judgment is a constitutional reaffirmation of the principle that constitutional entitlements must be earned, not constructed. Articles 51 and 106, along with the Elections Act, create a closed constitutional code governing electoral entitlement.
Any deviation from this code—whether by political actors or by courts—is a deviation from constitutional supremacy itself.
For PTI, this episode is a watershed legal setback, not only in terms of parliamentary representation but in terms of institutional legitimacy and constitutional positioning.
For the judiciary, it is a reminder that its powers, however vast, must remain interpretative and restrained, not inventive or partisan.
For Pakistan’s democratic order, the case affirms that durable governance can only emerge when legal strategy and constitutional compliance go hand-in-hand.
Hafiz Ahsaan Ahmad Khokhar is a Constitutional and International Law expert and Advocate of the Supreme Court of Pakistan
