The judgment on the Presidential Reference seeking the top court’s opinion on defection by parliamentarians has seemingly made the situation more perplexing by way of giving an interpretation despite the Article 63A is a complete code.
Though the top court was approached under advisory jurisdiction, the opinion has binding effects as the matter is disposed of under Article 184(3), the original jurisdiction, and Article 187.
The top court in its decision firstly said that the vote of any member of a parliamentary party that is cast contrary to the directions of the Party Head cannot be counted and must be disregarded. Secondly, such disregard is regardless of whether the Party Head, subsequent to such vote, proceeds to take – or refrains from taking – action that would result in a declaration of defection.
The top court’s decision does not affect the national assembly in the current situation, but it has long-lasting and significant repercussions on politics in the future. Confusion prevails and several questions emanate from the top court’s decision that is looming.
The majority of three to two judges not only gave a new interpretation but also considered the rights of political parties, and while disposing of the matter gave a great sense of security to parties’ heads. This has strengthened the dictatorial mindset within the parties. Now a prime minister, most of the time a party’s head, having no majority in the house, cannot be removed through a Vote of No Confidence.
Those members who stand with their conscience have also been put into the category of those who engage in horse-trading, and they have been stopped from going contrary to party directions at the time of passage of money bills or constitutional amendment bills.
Legal expert Salman Akram Raja views it differently. He says that the top court left the matter of Article 63A to Parliament. “There is still an option to remove a prime minister. The prime minister may be removed if a majority of the members of a parliamentary party show no confidence in him during the parliamentary meeting and inform the assembly secretariat accordingly,” says Salman Akram Raja, further adding that the defection clause will not be attracted to such members because the vote of minority members will not be counted as per the interpretation of the Supreme Court.
However, the minority view in the top court’s decision brilliantly avoided ambiguity by not agreeing with the decision of the majority judges. Both the judges observed that Article 63A of the Constitution is a complete code in itself, which provides a comprehensive procedure regarding the defection of a member of the Parliament and the consequences thereof.
They remarked that any further interpretation would amount to rewriting the Constitution, that will also affect the other provisions of the Constitution, which has not even been asked by the President through this reference.
“However, if the Parliament deems fit or appropriate, it may impose further bar or restrictions upon the defectors,” the two judges stated while seeing no force in the questions posed in the presidential reference.
The decision of the top court in the presidential reference has immediate consequences for politics in Punjab after the Election Commission of Pakistan (ECP) de-seated 25 members of the Punjab Assembly.
Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan, the petitioner before the ECP, contended that directions were issued followed by show-cause notice to the 25 members of his party in the Punjab Assembly, but the members denied the claim.
Legal expert Hafiz Ahsaan Ahmad Khokhar said that this is the first time since the introduction of Article 63A that the ECP confirmed the declaration sent by a party head.
The ECP in its 23-page judgment observed, “In today’s vibrant electronic, print and social media, it can be hardly believed that despite the party’s policy being flashed on electronic, print and social media, the respondents had no notice of the same.”
“There are two options before us (ECP), one is to ignore the completion of actus reus (casting of vote in favour of opposing candidate) on the ground of non-fulfilment of pre-requisites as mentioned in Article 63-A and decline the declarations,” said ECP, adding that the other option is to hold that casting of vote in favour of the opposing candidate against the party’s policy be seen as a serious matter.
The ECP held that the casting of votes by the 25 members in favour of the opposing candidate, Hamza Shahbaz, is a serious issue and the worst form of betrayal of the electorate and the party’s policy.
“Therefore, we hold that the defection in the subject cases shall not depend upon strict proof of observance of pre-requisites as provided in Article 63-A,” concluded the ECP.
Though the ECP’s decision will likely be challenged in the Supreme Court, the Commission also did not give much weightage to the procedure laid down in Article 63A, making it more redundant.