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May 20 , 2022

Defecting Lawmakers' Votes Will Not Be Counted , Supreme Court Decides

By Haseeb Bhatti

The Supreme Court on Tuesday, in its decision on a presidential reference seeking interpretation of Article 63-A of the Constitution which is related to the status of defecting lawmakers, said the votes of defecting lawmakers will not be counted.

The verdict by the larger bench of the apex court was a 3-2 split decision, with a majority of the judges not allowing lawmakers to vote against party line in four instances outlined under Article 63-A.

These four instances are the election of prime minister and chief minister; a vote of confidence or no-confidence; a Constitution amendment bill; and a money bill.

Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar gave the majority verdict while Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail were the dissenting judges, who said that giving an opinion on the presidential reference was akin to "rewriting the Constitution".

In the reference, President Arif Alvi had asked four main questions from the apex court:

Should Article 63-A have a limited or a broad, purpose-oriented interpretation?
Will the defecting members' vote be counted, given equal weightage?
Will the defectors be disqualified for life?
Measures that can be taken to prevent defection, floor crossing and vote-buying

Question 1: Should Article 63-A have a limited or a broad, purpose-oriented interpretation?

The short order, a copy of which is available with Dawn.com, said that the first question was related to the proper approach to be taken for the interpretation and application of Article 63-A.

"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," the verdict stated,

It said that Article 63-A was an "expression in the Constitution itself of certain aspects of the fundamental rights that inhere in political parties under clause (2) of Article 17," adding that the two provisions were "intertwined".

Article 17 of the Constitution guarantees citizens the fundamental right "to form or be a member of a political party".

The verdict went on to say that defections were "one of the most pernicious ways" in which political parties could be destabilized, noting that they could also delegitimize parliamentary democracy.

"Defections rightly stand condemned as a cancer afflicting the body politic. They cannot be countenanced," the order said, adding that 63-A must be interpreted in a "purposive and robust manner".

"The pith and substance of Article 63-A is to enforce the fundamental right of political parties under Article 17 [...] It must therefore be interpreted and applied in a broad manner, consistent with fundamental rights," the verdict said.

If there is a conflict between the fundamental rights of the collectivity [political party] and an individual member, the former must prevail, it added.

Question 2: Will the defecting members' vote be counted, given equal weightage?

Giving its stance on the second question, the verdict said that the vote of any 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, action that would result in a declaration of defection."

Question 3: Will the defectors be disqualified for life?

The court also observed that a declaration of defection could result in disqualification under Article 63 if parliament passed an appropriate law.

"While it is for parliament to enact such legislation, it must be said that it is high time that such a law is placed on 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 order stated in response to the third question.

Question 4: Measures that can be taken to prevent defection, floor crossing and vote-buying

The verdict refrained from giving an opinion on the fourth question, deeming it to be "vague, too broad and general". It subsequently returned the question unanswered.

Dissenting note

In the dissenting note, Justice Miankhel and Justice Mandokhail stated that Article 63-A was a "complete code" in itself and provided a comprehensive procedure regarding defection as well as the consequences for doing so.

"In case the Election Commission of Pakistan confirms the declaration sent by a party head against a member, he/she shall cease to be a member of the House. As a result thereof, his/her seat shall become vacant," the judges said, adding that a right of appeal had also been provided under Article 63-A.

They said that any further interpretation of Article 63-A would amount to "rewriting or reading into the Constitution", which would affect its provisions that had not even been asked by the president.

"Therefore, it is not our mandate. We see no force in the questions asked through this presidential reference, which are answered in the negative. However, if parliament deems fit or appropriate, [it] may impose further bar or restrictions upon the defectors," the judges concluded.

PTI hails verdict

PTI's Advocate Babar Awan bid "farewell" to the current government and said the verdict meant the end for the Punjab government as well. "What is the next constitutional option?" he asked.

PTI Secretary General Asad Umar congratulated the nation and said the legitimacy of the Punjab government had ended.

"The federal government should resign immediately. There are no grounds for a government formed through foreign interference and turncoats to continue for another day," Umar demanded.

PTI Vice President Fawad Chaudhry, addressing a press conference in Lahore, said the verdict had made the governments of Prime Minister Shehbaz Sharif and Punjab Chief Minister Hamza Sharif lose their majority.

"They should resign today from their positions and immediately leave them. I request the president to dissolve the [National] Assembly and provincial assembly and go towards new elections," Chaudhry said.

PTI Vice Chairman Shah Mahmood Qureshi also welcomed the verdict and said it had closed the door on horse-trading.

"The imported federal government, which came to power through an external conspiracy with the help of a curse like floor-crossing, should announce elections immediately," he demanded… - Dawn

Courtesy https://www.dawn.com