The provisions of Article 63-A are preventive rather than being punitive. Article 63A aims to restrict members of the Parliament or Provincial Assemblies to use their power of voting in certain matters, by making them bound by the decision of the Party Head. It is an established custom of parliamentary practice that a parliamentarian is only bound by their conscience when they exercise their vote while enacting laws. A parliamentarian is not even bound by their voters or constituents in this regard. Article 63A, (b) (iii) gives unfettered powers to political ‘Party Heads’ and effectively weakens the institution of parliamentary democracy as envisioned and envisaged by the authors of our Constitution.
In MLD 1995 Lahore 1903, the Lahore High Court held that the Speaker while examining a reference under Article 63(2) of the Constitution is not supposed to act merely as post office. If a reference is submitted to him, he is not bound to forward/transmit the same to the Chief Election Commissioner for decision forthwith. The Speaker has to apply his own mind judiciously after fully taking into consideration the relevant provision on the subject and then decide as to whether “any question” in the nature of disqualification has “arisen” which may justify the making of reference to the Chief Election Commissioner. A similar view was also expressed by the Apex Court in PLD 2005 SC 52.
However; in PLD 2012 SC 774, the said principle was deviated from and a full bench of the apex court went on to hold that it is mandatory upon the Speaker to send a reference to the Chief Election Commissioner in case disqualification is on the cards. In PLD 2018 SC 370, it has been held by a full bench of the apex court that a Party Head enjoys wide-ranging powers in matters where members of their party vote or abstain from voting in the house contrary to any direction issued by the parliamentary party to whom they belong in relation to the election of the Prime Minister or Chief Minister, a vote of confidence or no confidence, a Money Bill and a Constitutional Amendment Bill.
It is pertinent to mention here that where the Party Head declares that a Member of their party has defected and such declaration is sent to the Presiding Officer and the Chief Election Commissioner, it can ultimately lead to disqualification. A Party Head also exercises, controls and takes decisions regarding how members of the party would vote in the context of the Constitution and other laws. Article 63-A of the Constitution has been designed to act as an anti-defection measure.
The term “Party Head” has been defined in Article 63A of the Constitution to mean “any person by whatever name called, declared as such by the party.” Defection has been held by this court as a breach of “confidence reposed in him (parliamentarian) by the electorate” and a “betrayal of the representative” in the context that “sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust.”
Perusal of the provisions of Article 63A of the Constitution shows that where a member of the parliamentary party of a political party in a House resigns from membership of their party or joins another parliamentary party or votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which they belong in relation to the election of the Prime Minister or the Chief Minister, a vote of confidence or a vote of no confidence, a Money Bill or a Constitution (Amendment) Bill, they may be declared in writing by the Party Head to have defected from the political party. On making such declaration, the Party Head can forward a copy of the declaration to the Speaker, National Assembly, Chairman Senate of Pakistan or the Speakers of the Provincial Assemblies, as the case may be, for onwards transmission to Chief Election Commissioner.
It may be noted that Article 63A of the Constitution does not contain a non-obstante clause. It is to be construed along with the other Articles of the Constitution including Article 63, keeping in view that a Constitution is an organic document designed and intended to cater the needs for all times to come. This approach has also been followed by the apex Court in PLD 2014 SC 531, PLD 1957 SC 219, 2015 SCMR 1739.
An analysis of Article 63-A:
A combined reading of Article 63A and various provisions of the Election Act 2017 leads to the inescapable conclusion that the President/Party Head enjoys a central, pivotal and decisive role and position within the party, in the electoral process and in the Parliament through the parliamentary party which they directly control and superintend. They are the linchpin and pivot around which the entire structure of the party revolves, through which power flows to all organs, constituents and activities of the party. They have direct power, influence and control over how the party shall act and function within and outside the Parliament.
A person who does not qualify to be a member of the Parliament cannot in exercise of power under 63A be allowed to declare parliamentary members as disqualified to exercise the authority (of Almighty Allah) as his delegatees as a ‘sacred trust.’ Such interpretation would ex facie be absurd. How can it possibly be held that a Party Head who virtually controls and holds in their hands the fate and prospects of members of their party holding public office (who fulfill the requirements of Articles 62 and 63 of the Constitution), need not meet the requirements of the said Articles themselves? Such an interpretation would not only be contrary to and in conflict with the entire scheme, focus and theme of the Constitution discussed above, but would also defeat the very purpose of inserting the said provisions in the Constitution. Reference is made to PLD 1993 SC 473.
The Party Heads, through their power to impose disciplinary punishment as well to exonerate therefrom, virtually control the parliamentary party – which is evident from the power available to them under Article 63A of the Constitution. It would be absurd and illogical to hold that despite the fact that admittedly the Party Head virtually controls and holds in their hands the fate and prospects of members of their party holding parliamentary or other public office who fulfill the requirements of Articles 62 and 63 of the Constitution, yet they need not meet the requirements of the said Articles themselves. Such an interpretation would not only be contrary to and in conflict with the entire scheme, focus and theme of the Constitution discussed above, but would also defeat the very purpose of inserting the said provisions in the Constitution.
The proviso to Section 5 of the Order, 2002, merely reiterates the applicability of Articles 62 and 63 of the Constitution to a Party Head. Its omission from the newly enacted law would not have the effect of changing that meaning and scope from the interpretation of Section 203 of the Act, 2017 in view of the settled principle of law, inter alia, that all Articles of the Constitution have to read harmoniously and as an organic whole. Further, Article 63-A has been inserted in the Constitution inter alia to regulate working of parliamentary parties of political parties represented in the Parliament. To assert that Article 63-A has no nexus, link or connection with Article 17 of the Constitution, which furnishes the very basis to form and join political parties, is not only illogical but also irrational and untenable.