SCBA to challenge SC opinion on Article 63-A

Supreme Court Bar Association (SCBA) has decided to challenge the Supreme Court’s May 17 judgement which declared that a vote should not be counted if a legislator casts it in violation of the party line, seeking review of its majority opinion on the matter.

The premium body of the legal fraternity, through its counsel Mansoor Usman Awan, will file a review petition in the apex court and plead it to recall its judgement in the interest of justice on Thursday (today).

By a majority of three to two, the Supreme Court had held on May 17 that Article 63A of the Constitution, which deals with defection, protects the fundamental rights of a parliamentary party rather than its members. Therefore, a vote cast contrary to the party line should not be counted, the judgement said.

“Political parties are an integral aspect of the bedrock on which our democracy rests and their destabilisation tends to shake the bedrock, which can potentially put democracy itself in peril,” the SC judgement had observed.

The draft of SCBA’s review petition, which is available with The Express Tribune, states that in holding that the votes of defecting members must be disregarded and not counted, the apex court has ignored a principle of constitutional interpretation that has consistently been followed and upheld by it.

“Therefore, the holding of this court in paragraphs 1 to 3 of the order merits reconsideration and review by this court.

”Building a case for the historical rationale behind the insertion of the provision, the review petition mentions that the disregarding of defecting votes was first incorporated into the constitutional framework at the time of the commencement of the constitution, in terms of the erstwhile Article 96.

"Subsequently, this was substituted vide the Revival of Constitution of 1973 Order, 1985, read with the Constitution (Eighth) Amendment Act, 1985.

”Furthermore, Article 63A was inserted in 1997, which expressly provided for de-seating of defecting members and placed no other limitation on the right of members of the parliament to cast their votes in parliamentary proceedings, including a vote of no-confidence against a prime minister.

Since the insertion of Article 63A, it has been amended twice – first in 2002 and 2010. However, the parliament has consciously opted not to include any provision allowing for votes to be disregarded on account of defection.

It says that on the contrary, where the parliament intended for votes of defecting members to be disregarded, the same was expressly provided in the erstwhile Article 96 of the Constitution.

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Article 96, it further said, was introduced in the constitution at a peculiar time in our constitutional and political history, adding that prior to the commencement of the Constitution, the country had recently experienced exceptional political turmoil and an absence of constitutional stability.

"It was in this context that the framers of the Constitution had opted to include the proviso to Article 96(5) of the Constitution to ensure political stability."

It pointed out it was also important to note that the proviso to Article 96(5) of the Constitution came with a sunset clause of ten years or the term of two legislative assemblies, saying this was a result of a political compromise reached in the parliament and outside leading up to the adaptation of the constitution.

In this regard, the constitutional assembly debates shed useful light on the intention of the framers of the Constitution behind the introduction of the proviso to the erstwhile Article 96(5) of the Constitution.

A stop-gap arrangement

The SCBA petition pressed the point that it was clear that the framers of the constitution had intended the said provision to be "a stop-gap arrangement" to ensure stability during the first decade of the constitution.

“Had it been the intent of the framers, or subsequently the parliament to provide for disregarding defecting votes, a constitutional provision similar to the proviso of the erstwhile Article 96(5) could have been inserted.”

Therefore, in the absence of such a constitutional provision, the interpretation of Article 63A adopted by the apex court in paragraph 3 of its order amounts to “re-incarnating the proviso to Article 96(5) of the Constitution”, which had not only been expressly subjected to a sunset clause by the framers but has also never been re-introduced by the parliament.

The review petition further submitted that the expansion of Article 17(2) of the constitution to apply as a right vested in political parties, as held by the Supreme Court in paragraphs 1 and 2 of its judgement was done through two judgments.

"In these judgments, this honourable court held that the right enshrined in Article 17(2) includes the right of a political party to contest election and form governments. In doing so, the rights of individuals were extended to apply to political parties and were not made subservient to the rights of political parties. Thus, the finding that the rights of the collectivity (i.e. political party) prevail over the rights of the individual is not consistent with the jurisprudence of this Honourable court,” says the review petition.