Dissident MP’s vote can’t be counted under Article 63A: SC

ISLAMABAD: The Supreme Court Thursday observed that voting by parliamentarians against the party directions was a disastrous act for the parliamentary democratic system. The court announced the detailed verdict on the Presidential Reference seeking interpretation of Article 63-A of the Constitution.

The 95-page detailed verdict, authored by Justice Muneeb Akhtar, commenced with the quote of Chief Justice Marshall, “[We] must never forget that it is a Constitution that we are expounding.”

The detailed verdict reiterated that the votes of dissident lawmakers changing their loyalties could not be counted and must be disregarded. The court, however, held that the Parliament should determine the tenure of disqualification for the dissident lawmakers for holding public offices.

On May 17, a five-member bench, headed by Chief Justice of Pakistan (CJP) justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, had announced verdict on the Presidential Reference seeking interpretation of Article 63-A of the Constitution.

By majority of three to two (Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail dissenting, the court had held that defections were one of the most pernicious ways in which political parties could be destabilized.

“Indeed, they can delegitimize parliamentary democracy itself, which is an even more deleterious effect”, the majority decision had held adding that defections rightly stand condemned as a cancer afflicting the body politic hence they cannot be countenanced.

The court had further held that the vote of any member (including a deemed member) of a Parliamentary Party in a House that’s cast contrary to any direction issued by the latter in terms of para (b) of clause (1) of Article 63A could not 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 detailed verdict issued on Friday also rejected the objections raised on the maintainability of Presidential Reference and held that this questions were answered in the Wukala Mahaz case.

“Certain objections as to the maintainability of the Reference and the questions referred, such as a descent into the political thicket and the questions being vague, academic, abstract etc. were taken. These objections stand answered with reference to, and in terms of, Wukala Mahaz”, the detailed verdict noted.

The objections, therefore, fail and are hereby rejected and the questions answered, the court added. The court held that the right to free speech of parliamentarians, expressly recognized and protected in Wukala Mahaz, was very much there, as was the right of (rigorous and vigorous) discussion and debate, and even dissent and disagreement, within the party itself (whether the political party at large, or the parliamentary party). However, when it comes to the casting of the votes then matters take a different turn.

The court held that to impose a lifetime ban was to remove the defector for all cycles to come. 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, while keeping in mind what has been said in para 4. The question stands answered accordingly.

The court held that the individual vote of the elected member of the parliament was the collective right of the party adding that no party member with his own consent could vote another party.

The detailed verdict further held that counting the vote of dissident member against the decision of party policy was a threat to democratic system.

If the dissident members, violating the party discipline, were not encouraged, then there will be no transparent contest among the political parties, says the detailed verdict. The court held that if prime minister or a chief minister loses confidence in the parliamentary party, then they will have to face no-confidence motion. While casting his vote, the member has to abide by the directions by the party as enshrined in Article 63-A”, the court noted.

The detailed verdict dispelled this stance that dictatorship would prevail within the party if the vote cast by any dissident member was not counted. The parties are there reflected in, and represented by, their respective parliamentary parties, says the detailed verdict adding that in parliamentary democracy, it was in the legislative arena that the competition and rivalry for the acquisition, retention and exercise of political power continues.

“We have seen that each political party is in equal measure entitled to the bundle of rights comprised in Article 17(2). Defections tend to disrupt, if not destroy, this balance, which must at all times exist among political parties as they operate under the Constitution”, the court held.

It further noted that it tended to demolish the “healthy” political competition and rivalry that is a sine qua non for Article 17(2). The detailed verdict further held that parties may not be equal in practice but they are always equal in the eyes of the Constitution.

The minnows must be able to swim freely with the whales, and neither should have to face even the threat of predatory attacks; there is no place for sharks in the waters that nourish Article 17(2)”, says the detailed verdict

The court further held that defections were an attack on the integrity and cohesion of the political parties, and represent in an acute form the unconstitutional and unlawful assaults, encroachments and erosions which constitute a direct negation and denial of the rights encompassed in Article 17(2).

“There can be no “healthy” operating of, and among, the parties in the external aspect if defections are not thwarted and defeated, says the verdict. Indeed, the degradation—if not outright destruction—of “healthy” operating of parties in this manner is how and why the political bedrock established by the Constitution can become destabilized and parliamentary democracy itself delegitimized, the verdict noted.

The detailed verdict held that similar considerations apply in relation to the internal aspect of the “healthy” operating of political parties. “A defection in the ranks of a political party, and especially from amongst the members of its parliamentary party, tends to disrupt it from within, says the detailed verdict.

The court further noted that defections attack and undermine Article 17(2) at its very root. Howsoever viewed, defections (and, again, especially of the parliamentarians who comprise a political party’s parliamentary party) badly damage and can fatally compromise (at the very least, and almost certainly, during the ongoing election cycle) the “healthy” operating of political parties in all aspects of this requirement of the fundamental right that is set out in Article 17(2). It further noted that defections are a near absolute negation of this fundamental right.

“The conclusion therefore is clear: it is inherent in the very nature of Article 17(2) that it can be properly understood (and, to use the language of Article 184(3), enforced) if, and only if, it is applied in a strongly anti-defection manner that, if possible, deals (as it were) a deathblow to this evil and menace in all its manifestations, says the verdict.