Recently, I submitted a constitutional petition in the Peshawar High Court challenging Article 63 A (1) (b) of the 18th Amendment. This article defines disqualification of parliamentarians when they vote or abstain from voting in the House, contrary to any direction issued by the Parliamentary Party on election of the prime minister or the chief minister, on a vote of confidence, or on a money or constitutional bill.
The argument in the petition states that this Article, in effect, breaches guaranteed fundamental rights, violates representative government and is in violation of Article 4, 14, 17, 19, 25, 55, 63(2), 66, 95, 127.
The 14th Amendment in 1997 inserted Article 63-A, which accepted disqualification when there is violation of party constitution, code of conduct or declared policies. Through Article 62 A (2), it gave powers to the disciplinary committee of the party to decide the matter. This provision was deleted via the Legal Framework Order (LFO) of 2002, giving dictatorial powers to the party head and also imposing unreasonable restrictions on freedom of speech of members. The same was continued by the 18th Amendment.
The LFO strengthened the anti-floor crossing Article which was maintained in the 18th Amendment. However, the deletion of Article 17 (4) of the LFO 2002 in the 18th Amendment proved to be anti-democratic; in that it overlooked the possibility of parties not holding internal elections. The post-18th Amendment Article 63-A (1) b was counter-productive for democratic legislation because it insisted on “any direction issued by the parliamentary party” versus the more democratic concept of party policy as determined by the entire party. The omission of a party disciplinary committee from the said Article was a further regression from earlier legislation on the same.
This Article also violated the principle that a member had a right to complete his tenure in the Assembly unless it was lawfully terminated. Any legislation which could be used as an instrument by a party head or political party to cut short a tenure of a member on pretext of violation of his direction would prima facie be regarded as a violation of fundamental rights.
The constitutional committee members misled the rest of parliament into signing off on certain anti-democratic Articles. There are many issues on which I, as a parliamentarian, could have strong individual views. These views, if at any point compromised, could reduce my position to that of a puppet of the party versus being a representative of my people. So if parliament is making anti-democratic laws then these need to be checked. An MP’s duty is to the people and, as a consequence, to his or her party — not the other way around.
Published in The Express Tribune, March 9th, 2011.
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