Votes of defectors will not be counted, rules SC

Court leaves question of lifetime disqualification of dissidents for assemblies to decide

ISLAMABAD:

The Supreme Court on Tuesday by a majority 3:2 decision held that defecting lawmakers’ votes could not be counted.

After the apex court’s verdict, the fate of the Punjab government now hangs in the balance as chief minister Hamza Shehbaz was elected to the post with the help of the votes of 24 PTI dissident MPAs.

The SC announced its opinion on the presidential reference seeking interpretation of Article 63-A.

In a five-member larger bench, Chief Justice of Pakistan Umar Ata Bandial, who was heading it, as well as Justice Ijaz Ul Ahsan and Justice Munib Akhtar agreed that dissident members’ votes should not be counted, while Justice Jamal Khan Mandokhail and Justice Mazhar Alam Khan Miankhel disagreed with the verdict.

Two judges in the minority opinion stated that “any further interpretation of Article 63-A, in our view, would amount to re-writing or reading into the Constitution and will also affect the other provisions of Constitution, which has not even been asked by the president”.

On the matter of lifetime disqualification of the dissident members, the court declined to issue a verdict and noted that as it was a constitutional matter under Article 63-A, therefore, parliament should look into it.

According to the decision, dissident lawmakers were not allowed to vote against the party line in four instances including the election of prime minister and chief minister; a vote of confidence or no-confidence; a constitutional amendment bill; and a money bill outlined under Article 63-A.

"The first question referred by the President relates to the proper approach to be taken to the interpretation and application of Article 63A of the Constitution. In our view, this provision cannot be read and applied in isolation and in a manner as though it is aloof from, or indifferent to, whatever else is provided in the Constitution. Nor can Article 63A be understood and applied from the vantage point of the member who has earned opprobrium and faces legal censure as a defector by reason of his having acted or voted (or abstained from voting) in a manner contrary to what is required of him under clause (1) thereof,” the short order read.

“Rather, in its true perspective, this Article is an expression in the Constitution itself of certain aspects of the fundamental rights that inhere in political parties under clause (2) of Article 17. The two provisions are intertwined. In its essence Article 63A functions to protect, and ensure the continued coherence of, political parties in the legislative arena where they are the primary actors in our system of parliamentary democracy, which is one of the salient features of the Constitution. Political parties are an integral aspect of the bedrock on which our democracy rests. Their destabilization tends to shake the bedrock, which can potentially put democracy itself in peril. Defections are one of the most pernicious ways political parties can be destabilised. Indeed, they can delegitimise parliamentary democracy itself, which is an even more deleterious effect. Defections rightly stand condemned as a cancer afflicting the body politic. They cannot be countenanced," it added.

The order stated that Article 63-A should not need to be invoked at all; its mere existence, a brooding presence, should be enough.

“Put differently, the true measure of its effectiveness is that no member of a Parliamentary Party ever has to be declared a defector. Article 63-A should therefore be given that interpretation and application accord with and is aligned as closely as possible to, the ideal situation. The pith and substance of Article 63-A is to enforce the fundamental right of political parties under Article 17 that, in particular in the legislative arena, their cohesion be respected, and protected from unconstitutional and unlawful assaults, encroachments, and erosions. It must therefore be interpreted and applied in a broad manner, consistent with fundamental rights. It also follows that if at all there is any conflict between the fundamental rights of the collectivity (i.e. the political party) and an individual member thereof it is the former that must prevail. The first question is answered accordingly.”

The court noted that turning to the second question and keeping in mind the answer to the first, “it is our view that the vote of any member (including a deemed member) of a Parliamentary Party in a House that is cast contrary to any direction issued by the latter in terms of para (b) of clause (1) of Article 63-A cannot be counted and must be disregarded, and this is so regardless of whether the Party Head, subsequent to such vote, proceeds to take, or refrains from taking, an action that would result in a declaration of defection”.

The court observed that for the third question, “it is our view that a declaration of defection in terms of Article 63-A can be a disqualification under Article 63, in terms of an appropriate law made by Parliament under para (p) of clause (1) thereof. While it is for Parliament to enact such legislation, it must be said that it is high time that such a law is placed in the statute book. If such legislation is enacted it should not amount to a mere slap on the wrist but must be a robust and proportionate response to the evil that it is designed to thwart and eradicate”.

The SC further stated that the fourth question referred to this court was stated in terms that were vague, too broad, and general and it was therefore returned unanswered.  The short-order disposed of pending matters under Article 186 as well as Article 184(3).