Pakistan has always been a hard country, undergoing some form of transition since the days of Partition – and stability is a dream that many don’t dare have. These days, the country is embroiled in a clash between the opposition and the sitting government as the Prime Minister, having alienated every single institution within the country, is struggling to hold his mandate together. The country is rife with rumours, tales, conspiracy theories and blame games, as the opposition is doubling down on the no-confidence motion and repeatedly warning the incumbent government that many are willing to cross the floor and join their no-confidence motion. The sitting government is also well aware that the party is severely broken and divided, and it was due to this that Mr Babar Awan and Mr Fawad Chaudhary have looked to explain the law of defection. As I listened to their misguided interpretation, it was becoming abundantly clear that the government will once again trample upon the Constitution through misinterpretation, causing serious damage to the Constitution and the Country.
The incumbent government has highlighted that Article 63A, “Disqualification of Member upon defection,” immediately penalises the individual if the said individual takes any action in contravention to party policy during voting. They further stated that the Speaker has the power to discount votes cast by such members and can immediately take action and have them removed from the parliament – and that the actions of the Speaker cannot be challenged in any court of law. This interpretation can be best described as far-fetched.
Article 63A contains within itself an entire procedure that is to be followed before the disqualification of the member since the law clearly states that whenever a candidate acts in such a manner, then the party head shall issue them a Show-Cause Notice and then issue a declaration that they are to be removed from said political party and the parliament to the presiding officer, who shall send one copy to the member and one to the election commissioner, and upon receiving the same, summon the member in two days and decide whether their action constituted defection within 30 days. The aggrieved party may file an appeal to the Supreme Court within 30 days of the decision of the ECP. During this process, the membership of the parliamentarian remains – and there is nothing within the law nor precedents set by the Supreme Court that on a mere allegation, the membership of the defecting parliamentarian is to be suspended. In fact, the Peshawar High Court recently adjudged in 2018 CLC 1202 that the procedure in 63A protects the fundamental rights of the member and they are not to be punished nor penalised until due process takes place. In law, there is a settled principle that nobody can add to the words of the lawmaker. You can interpret legislation both conservatively and liberally, but you cannot add procedural steps nor penalties which have not been sanctioned by the lawmaker. The interpretation being forwarded by the sitting government is adding new procedures and new penalties. This is doubled when the law being interpreted is a penal offence (Article 63A is penal) and the Supreme Court had interpreted the Article in this exact manner in its judgment of 1998 PLD 1263 Supreme Court, again in 2018 PLD 370, 2018 PLD 97 and in 2018 PLD 300 where the court highlighted the proper procedure and declared that the proper procedure mentioned within Article 63A was a crucial element when it was to be invoked against any member.
It is quite surprising that the legal team of the incumbent government is even considering such fallacy since they have already suffered the consequences of not following the proper procedure in the landmark case of Imran Khan vs Ayesha Gulalai 2018 SCMR 1043, wherein the Supreme Court of Pakistan had stated that the process written in Article 63A could not be circumvented. The case was that PTI had sent Ayesha Gulalai a show-cause notice which was dated 10-08-2017 but was sent on 18-07-2018, asking her to reply in seven days of the issuance of the notice. The court declared the action filed with ill-intent, since Ayesha Gulalai was not given time to reply in her defence. So, the court called the entire process flawed, declaring that her fundamental rights had been violated and Article 63A could not be invoked in such a manner. After such a failure, it would be tantamount to madness for PTI to not follow the procedure.
Lastly, coming to whether the actions of the Speaker cannot be challenged in the court of law, it appears that the government is misinterpreting the law here too. Whilst it is true that parliamentary proceedings cannot be challenged in the court of law, it is also a settled principle of law that if anyone’s fundamental rights are violated or if any organ of state takes an unconstitutional action, then the same is liable to be challenged. And if the learned legal team of the government feels differently, then we can always go through the judicial history of Article 69, which bars courts from putting the proceedings on trial and a bare perusal informs us that initially the action of the Speaker was declared non-justiciable by a majority decision in Ahmad Saeed Kirmani's case PLD 1956 Lahore 807. However, with time, the judicial inclination tilted in favour of assuming jurisdiction and the action of the Speaker regarding resignations of members was declared justiciable in Fazalul Quader Chaudhury's case PLD 1966 SC 105. This view was further confirmed in Farzand Ali's case PLD 1970 SC 98, Muhammad Anwar Durrani's case PLD 1989 Quetta-25, Muhammad Naeem Akhtar's case 1992 CLC 2043 and Mining Industries Pakistan's case PLD 2006 Quetta 36. Similarly, the ruling of the Speaker of the National Assembly was also declared justiciable, declaring the same to be outside the scope of proceedings provided under Article 69 of the Constitution in Muhammad Azhar Siddiqui's case PLD 2012 SC 774. In addition, even the administrative actions of the worthy Speaker have been declared justiciable in Shamsuddin's case 1995 PLC (CS) 8. Interestingly, a writ of mandamus was also issued, directing the worthy Chairman to produce a member to exercise his right of vote in the Senate by full Bench of the Sindh High Court in Asif Ali Zardari's case PLD 1999 Karachi 54, wherein it is held that;
"It is only an exercise of power, which has a nexus with regulating of procedure or the conduct of business or maintaining of order in the Parliament which is, thus made immune, though subject to time honoured constrains. In other words, the concept of internal proceedings also comes into play while construing the extent or expanse of such powers and that, necessarily, is circumscribed by "formal transaction of business" concomitant to such internal proceedings."
It is becoming quite clear that the incumbent government, in an attempt to salvage the shattered remains of its power, will take unconstitutional steps to save the prime minister. However, if this is done, then it will create a severe constitutional crisis within the country which will not only weaken the constitution but also the federation itself. And while the incumbent government’s callousness regarding the interpretation of constitutional provisions are well known, a question has to be asked of learned legal minds and respected lawyers employed by the government: as to whether creating an irreparable constitutional crisis is an acceptable cost for salvaging this broken government.
History will not look upon them kindly if they push ahead with such flawed interpretations of law. It is time for the learned jurists to stand up once again for the defence of the Constitution and warn the incumbent government that any unconstitutional step will not go unchallenged.
The incumbent government has highlighted that Article 63A, “Disqualification of Member upon defection,” immediately penalises the individual if the said individual takes any action in contravention to party policy during voting. They further stated that the Speaker has the power to discount votes cast by such members and can immediately take action and have them removed from the parliament – and that the actions of the Speaker cannot be challenged in any court of law. This interpretation can be best described as far-fetched.
In law, there is a settled principle that nobody can add to the words of the lawmaker. You can interpret legislation both conservatively and liberally, but you cannot add procedural steps nor penalties which have not been sanctioned by the lawmaker
Article 63A contains within itself an entire procedure that is to be followed before the disqualification of the member since the law clearly states that whenever a candidate acts in such a manner, then the party head shall issue them a Show-Cause Notice and then issue a declaration that they are to be removed from said political party and the parliament to the presiding officer, who shall send one copy to the member and one to the election commissioner, and upon receiving the same, summon the member in two days and decide whether their action constituted defection within 30 days. The aggrieved party may file an appeal to the Supreme Court within 30 days of the decision of the ECP. During this process, the membership of the parliamentarian remains – and there is nothing within the law nor precedents set by the Supreme Court that on a mere allegation, the membership of the defecting parliamentarian is to be suspended. In fact, the Peshawar High Court recently adjudged in 2018 CLC 1202 that the procedure in 63A protects the fundamental rights of the member and they are not to be punished nor penalised until due process takes place. In law, there is a settled principle that nobody can add to the words of the lawmaker. You can interpret legislation both conservatively and liberally, but you cannot add procedural steps nor penalties which have not been sanctioned by the lawmaker. The interpretation being forwarded by the sitting government is adding new procedures and new penalties. This is doubled when the law being interpreted is a penal offence (Article 63A is penal) and the Supreme Court had interpreted the Article in this exact manner in its judgment of 1998 PLD 1263 Supreme Court, again in 2018 PLD 370, 2018 PLD 97 and in 2018 PLD 300 where the court highlighted the proper procedure and declared that the proper procedure mentioned within Article 63A was a crucial element when it was to be invoked against any member.
It is quite surprising that the legal team of the incumbent government is even considering such fallacy since they have already suffered the consequences of not following the proper procedure in the landmark case of Imran Khan vs Ayesha Gulalai 2018 SCMR 1043, wherein the Supreme Court of Pakistan had stated that the process written in Article 63A could not be circumvented. The case was that PTI had sent Ayesha Gulalai a show-cause notice which was dated 10-08-2017 but was sent on 18-07-2018, asking her to reply in seven days of the issuance of the notice. The court declared the action filed with ill-intent, since Ayesha Gulalai was not given time to reply in her defence. So, the court called the entire process flawed, declaring that her fundamental rights had been violated and Article 63A could not be invoked in such a manner. After such a failure, it would be tantamount to madness for PTI to not follow the procedure.
Lastly, coming to whether the actions of the Speaker cannot be challenged in the court of law, it appears that the government is misinterpreting the law here too. Whilst it is true that parliamentary proceedings cannot be challenged in the court of law, it is also a settled principle of law that if anyone’s fundamental rights are violated or if any organ of state takes an unconstitutional action, then the same is liable to be challenged. And if the learned legal team of the government feels differently, then we can always go through the judicial history of Article 69, which bars courts from putting the proceedings on trial and a bare perusal informs us that initially the action of the Speaker was declared non-justiciable by a majority decision in Ahmad Saeed Kirmani's case PLD 1956 Lahore 807. However, with time, the judicial inclination tilted in favour of assuming jurisdiction and the action of the Speaker regarding resignations of members was declared justiciable in Fazalul Quader Chaudhury's case PLD 1966 SC 105. This view was further confirmed in Farzand Ali's case PLD 1970 SC 98, Muhammad Anwar Durrani's case PLD 1989 Quetta-25, Muhammad Naeem Akhtar's case 1992 CLC 2043 and Mining Industries Pakistan's case PLD 2006 Quetta 36. Similarly, the ruling of the Speaker of the National Assembly was also declared justiciable, declaring the same to be outside the scope of proceedings provided under Article 69 of the Constitution in Muhammad Azhar Siddiqui's case PLD 2012 SC 774. In addition, even the administrative actions of the worthy Speaker have been declared justiciable in Shamsuddin's case 1995 PLC (CS) 8. Interestingly, a writ of mandamus was also issued, directing the worthy Chairman to produce a member to exercise his right of vote in the Senate by full Bench of the Sindh High Court in Asif Ali Zardari's case PLD 1999 Karachi 54, wherein it is held that;
"It is only an exercise of power, which has a nexus with regulating of procedure or the conduct of business or maintaining of order in the Parliament which is, thus made immune, though subject to time honoured constrains. In other words, the concept of internal proceedings also comes into play while construing the extent or expanse of such powers and that, necessarily, is circumscribed by "formal transaction of business" concomitant to such internal proceedings."
It is becoming quite clear that the incumbent government, in an attempt to salvage the shattered remains of its power, will take unconstitutional steps to save the prime minister. However, if this is done, then it will create a severe constitutional crisis within the country which will not only weaken the constitution but also the federation itself. And while the incumbent government’s callousness regarding the interpretation of constitutional provisions are well known, a question has to be asked of learned legal minds and respected lawyers employed by the government: as to whether creating an irreparable constitutional crisis is an acceptable cost for salvaging this broken government.
History will not look upon them kindly if they push ahead with such flawed interpretations of law. It is time for the learned jurists to stand up once again for the defence of the Constitution and warn the incumbent government that any unconstitutional step will not go unchallenged.