No-trust motion: Defection clause in sharp focus

Defection clause would apply once a lawmaker vote in favour of the no-confidence move, says former AGP

ISLAMABAD:

The possibility of some ruling Pakistan Tehreek-e-Insaf lawmakers voting in favour of the no-confidence motion has generated a debate over the applicability of the defection clause.

Adviser to PM on Parliamentary Affairs Dr Babar Awan, during a programme on a TV channel, said that the National Assembly speaker has the authority to pass exclusive ruling, restraining MNAs from casting their votes in violation of directive issued by the party head.

Awan also said that the speaker’s ruling could not be challenged in any court of law.

However, former attorney general for Pakistan Ashtar Ausaf believes that the NA speaker has no such authority. He said that the defection clause would apply once a lawmaker vote in favour of the no-confidence move.

Ausaf said the role of the NA speaker is like a postmaster in the implementation of Article 63(A) of the Constitution. He said that a party head is bound to issue show cause notices to those lawmakers who acted against his or her direction in view of Article 63(A).

Regarding Awan’s opinion, Ausaf said the speaker has no authority to give a ruling whereby restraining any MNA from taking part in the voting process. “Even the Supreme Court in the Azhar Siddique case had rejected the speaker’s ruling and de-seated former prime minister Yousuf Raza Gilani.”

However, a legal expert from the opposition camp stated that he had suggested the leadership to move a vote of no confidence against Speaker Asad Qaiser first, as the PTI may go to any extend to save Prime Minister Imran Khan.

However, he said that the process regarding implementation of Article 63(A) would take time and it would not be easy for Imran Khan to de-seat lawmakers immediately in the presence of incumbent Election Commission of Pakistan.

A cabinet member says that the no-confidence move is political in nature that should be defeated politically, rather than on technical grounds. He believes that the PTI should counter the move through political manoeuvring.

Read Motion on the table: Joint opposition files no-trust, requisition for NA session

Article 63(A) says that if a member of a parliamentary party composed of a single political party in a house (a) resigns from the membership of his political party or joins another parliamentary party; or (b) votes or abstains from voting in the house contrary to any direction issued by the parliamentary party to which he belongs, in relation to — (i) election of the prime minister or the chief minister; or (ii) a vote of confidence or a vote of no-confidence; or (iii) a money bill or a Constitution (Amendment) Bill; subs. by the Constitution (18th Amendment) Act, 2010 (10 of 2010), s.22, for Article 63A, he may be declared in writing by the party head to have defected from the political party, and the party head may forward a copy of the declaration to the presiding officer and the chief election commissioner and shall similarly forward a copy thereof to the member concerned: provided that before making the declaration, the party head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him.

(2) A member of a house shall be deemed to be a member of a parliamentary party if he, having been elected as a candidate or nominee of a political party which constitutes the parliamentary party in the house or, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such parliamentary party after such election by means of a declaration in writing.

(3) Upon receipt of the declaration under clause (1), the Presiding Officer of the House shall within two days refer, and in case he fails to do so it shall be deemed that he has referred, the declaration to the Chief Election Commissioner who shall lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner.

(4) Where the Election Commission confirms the declaration, the member referred to in clause (1) shall cease to be a member of the House and his seat shall become vacant. (5) Any party aggrieved by the decision of the Election Commission may, within thirty days, prefer an appeal to the Supreme Court which shall decide the matter within ninety days from the date of the filing of the appeal.

(6) Nothing contained in this Article shall apply to the Chairman or Speaker of a House.

(7) For the purpose of this Article,— (a) "House" means the National Assembly or the Senate, in relation to the Federation; and a Provincial Assembly in relation to the Province, as the case may be;

(b) "Presiding Officer" means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be.

(8) Article 63A substituted as aforesaid shall comes into effect from the next general elections to be held after the commencement of the Constitution (Eighteenth Amendment) Act, 2010: provided that till Article 63A substituted as aforesaid comes into effect the provisions of existing Article 63A shall remain operative]"

Senior lawyers say that in case one-dozen PTI MNAs resign, then the prime minister has to take a vote of confidence. A PML-N leader claimed that the opposition got the support of 189 MNAs for making the vote of no-confidence a success.

Another leader belonging to the JUI-F revealed that more lawmakers from Balochistan and Khyber-Pakhtunkhwa would announce their support for the opposition move.