Farooq Naeem—AFP
The Supreme Court of Pakistan on Friday issued its detailed judgment on a presidential reference seeking interpretation of Article 63A of the Constitution, maintaining that Parliament must determine the length of a dissident lawmaker’s disqualification from public office.
“To impose a lifetime ban is to remove the defector for all cycles to come,” reads the judgment that was authored by Justice Munib Akhtar. “Since Article 63(1)(p) confers the necessary competence on Parliament, on reflection it is our view that the matter is best left to the legislature,” it added in a 95-page detailed judgment that was heard by a five-member bench comprising Chief Justice Umar Ata Bandial; Justice Ijazul Ahsan; Justice Mazhar Alam Khan Miankhel; Justice Munib Akhtar; and Justice Jamal Khan Mandokhail.
In his dissenting note, issued in July, Justice Mandokhail had observed that the apex court’s ruling was akin to amending the Constitution, stressing that judges had no authority to assume the role of parliamentarians. Similarly, Justice Miankhel’s dissenting note had said the wording of Article 63A was “clear” and needed no further interpretation. The ruling was issued with a majority 3-2 vote, with three in favor and two against.
According to the detailed judgment, votes of dissident members of Parliament cast against the instructions of their parliamentary party cannot be counted. “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 63A 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,” read the judgment.
It said that a lawmaker would be deemed to have defected from a political party if they violated party discipline by deviating from its constitution, code of conduct and declared policies; voted contrary to any direction issued by the relevant Parliamentary Party; abstained from voting in the House against party policy in relation to any bill. This would apply to anyone who was either elected to office under the symbol of a political party or joined it after election through a written declaration.
The apex court judgment also stated that counting votes cast against party policy was a “threat” to the democratic system.
According to Article 63(A) of the Constitution, any lawmaker could be disqualified on the grounds of defection if they voted or abstained from voting in the House contrary to directions issued by their parliamentary party for either the election of the prime minister or chief minister; vote of confidence or vote of no-confidence; and any money or constitutional amendment bill.
Under the article, the head of the party must issue show-cause to the parliamentarian concerned after which they must present a written declaration that they have defected to the speaker, who must then pass on the declaration to the chief election commissioner for further action.
The reference in question was filed by President Arif Alvi after several PTI lawmakers announced they would vote against then-prime minister Imran Khan in violation of party policy. However, no PTI MNA cast any vote, as the opposition secured the necessary 172 votes through its own numbers and former coalition partners of the PTI. The reference had called for the lifetime disqualification of dissenters, which the apex court has ruled must be determined through legislation.