All eyes again on top court

Legal experts say Punjab Assembly deputy speaker’s ruling ‘flawed'

ISLAMABAD:

All eyes in the country are again on the Supreme Court to adjudicate the Punjab Assembly Deputy Speaker Sardar Dost Muhammad Mazari’s ruling to discard 10 PML-Q votes in the election for the provincial chief executive held on Friday.

Renowned lawyer Salman Akram Raja argued that a party head could not stop the members from voting in accordance with the decision of the parliamentary party and Article 63A was clear in this connection.

"Some manipulations of the Constitution are sad. This one is just silly", he added.

“Travesty by the deputy speaker. All sides have tried to make a mockery of the constitutional process when it has suited them to do so. The Constitution functions meaningfully only when all entrusted with implementing it follow its text and its spirit regardless of partisan politics.”

Barrister Asad Rahim Khan also shared similar views. He described the deputy speaker’s ruling as “patently absurd”. “It is as bereft of law as [former National Assembly deputy speaker] Qasim Suri’s ruling in April,” he added.

Read Interpreting Article 63A: impact on our political system

“The text of Article 63-A is clear: voting is per the direction of the parliamentary party, and not the party head.”

He further contended that Mazari was reading the Supreme Court’s judgment backwards. “The party head only comes into play during defection proceedings. Prior to casting the vote, it is the direction of the parliamentary party that is in the field,” he maintained. “If the entire proceedings were meant to be dictated by the party head, the use of the expression ‘parliamentary party’ would never have been used in the first place. The Punjab Assembly has been turned into a circus.”

Advocate Hafiz Ahsaan Ahmad Khokhar said the present run-off election of the Punjab chief minister had been held in pursuance of clear directions of the Supreme Court given a few days back with the consensus of both sides on an appeal challenging the judgment of the Lahore High Court on the same matter.

However, he added that in the election held on Friday, the Punjab Assembly deputy speaker had not counted 10 votes of the PML-Q while referring to the judgment of the SC issued in the presidential reference -- particularly when all members of that political party reportedly followed the instructions of the head of the parliamentary party.

He further said Article 63-A dealt with the process of defection of parliamentarians -- both belonging to the National and provincial assemblies.

According to experts, the lawmakers can be disqualified on the grounds of defection if they vote or abstain from voting in the House contrary to any direction issued by the parliamentary party to which they belong.

However, according to Khokhar, this was restricted to three instances where they have to follow the party’s directions such as election of the prime minister or chief minister, vote of confidence or a vote of no-confidence and a money bill.

Read more Article 63A binds members to abide by party policy: SC

“In all these situations, the decision of the parliamentary party is the key word in terms of directions issued under Article 63-A (1) and (2) of the Constitution,” he claimed.

According to Khokhar, there would be little chances that the top court would grace immunity to the present ruling of Mazari, being probably claimed under Article 69 of the Constitution. He added that the reason for this was that the Supreme Court had recently held that the protection afforded to proceedings in parliament by Article 69-1 gave cover only to the procedure specified in the NA Procedure Rules that regulated the business of the House.

“As a result, the proceedings that infringe the provisions of the Constitution are no longer protected which pertains to provisions that create substantive rights and duties or prescribe procedure, meaning thereby that there would be no blanket immunity to the proceedings of assemblies claimed under Article 69-1, he added.

PPP Senator Mustafa Nawaz Khokhar said the truth was it was all about November, which had brought the country and politics to a meltdown.

Chaudhry Faisal Hussain, the counsel for PML-Q leader and Punjab Assembly Speaker Parvez Elahi, while referring to the SC judgment in Ayesha Gulalai case, said that under Article 63-A, the parliamentary party or party whip issued the directions. He added that they would approach the apex court against Mazari’s ruling.

Elahi was running for the Punjab CM slot against PML-N’s Hamza Shehbaz.

It has been learnt that the PML-N legal team wanted that if SC took notice of the ruling, then they would request that the matter should be heard along with a review petition against the majority opinion on the presidential reference about the interpretation and scope of Article 63-A.

A five-judge larger bench of the apex court, led by Chief Justice of Pakistan Umar Ata Bandial, had given its opinion on the presidential reference.

One member of the larger bench, Justice Mazhar Alam Miankhel, has already retired on July 13.

A new judge will be included in the larger bench to hear the review petition.

Former Sindh High Court Bar Association (SHCBA) president Salahuddin Ahmed said the Punjab Assembly deputy speaker’s refusal to count the PML-Q votes was totally wrong. “However, this particular door was opened by the SC’s own remoulding of Article 63-A.,” he added.

The ex-SHCBA president wrote on his Twitter handle: "Do my PTI friends still feel a Speaker’s ruling/parliamentary proceedings are immune from judicial scrutiny? Farce in Punjab Assembly today is direct result of SC’s absurd interpretation of Art.63-A. They were warned at the time they’d be setting up dictatorship of party head.”

Talking to The Express Tribune, Salahuddin said it was an unfortunate episode.

"There is nothing in the Constitution that allows a speaker to disregard the vote of any member of the House. The person receiving the majority votes should be duly elected. But sadly, this door was opened by the Supreme Court itself through its remoulding of the clear language of Article 63-A.”

In respect of the debate as to who was competent to give the directions to the PML-Q members, the ex-SHCBA president maintained that the Constitution used the phrase “parliamentary party” but did not clarify who was competent to take the decision on its behalf.

"Can the party head make the decision or must it be taken by the majority of parliamentary party members in a meeting? Ordinarily, one would lean towards the latter interpretation. However, in the case of the PTI defectors in the Punjab Assembly, it was expressly argued that neither any meeting of the parliamentary party had been called, nor any decision made by them,” he noted.

“This argument was rejected by the ECP and they were disqualified. The ECP had said the PTI leadership’s decision to support Parvez Elahi was widely known. This tends to favour the view that the decision is that of the party head. Obviously, the matter will now head back to the Supreme Court for clarification.”

Once again the composition of the bench will be significant to decide legality of the PA deputy speaker ruling.