Article 63-A: Dissident lawmakers' vote will not be counted, announces SC

Article 63-A: Dissident lawmakers' vote will not be counted, announces SC

Islamabad (Web Desk): The Supreme Court (SC) on Tuesday declared that a dissident member of the parliament cannot cast vote against party directives.

A five-member bench of the SC headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, and comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, completed proceedings on a presidential reference seeking interpretation of Article 63-A of the Constitution, relating to the disqualification of lawmakers over defection.

The apex court in its majority decision ruled that a dissident lawmaker's vote cannot be counted. 

However, the court sent back the question to the President seeking disqualification of dissident members for life.

The SC observed that it is the right time for the parliament to go for legislation regarding the time period of disqualification of a dissident lawmaker.

Justice Jamal Khan Mandokhail and Justice Mazhar Alam Khan Miankhel dissented with the majority decision.

In March, President Arif Alvi sent the reference on the advice of the then prime minister Imran Khan seeking interpretation of Article 63-A regarding its application of defecting parliamentarians.

In the reference, the apex court’s opinion had been sought on two interpretations of Article 63-A and which one should be adopted and implemented to achieve the constitutional objective of curbing the menace of defections, purification of the electoral process, and democratic accountability.

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

Decision:

According to the decision, dissident lawmakers were not allowed to vote against party line in four instances including the election of prime minister and chief minister; a vote of confidence or no-confidence; a Constitution 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.

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 63-A 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 in which political parties can be destabilized. Indeed, they can delegitimize 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,” read the short order.

The order stated the 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 as accords 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.

“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 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. The second question referred to this Court stands answered in the foregoing terms.

“As regards 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 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 question stands answered accordingly,” read the judgement.

It further stated that the fourth question referred to this Court was stated in terms that were vague, and 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).