Invocation of floor-crossing clause: ECP real decider if an MP defects in no-trust resolution vote

ISLAMABAD: The Election Commission of Pakistan (ECP) has a decisive role to play in declaring that an MP has defected from his party even after the National Assembly Speaker holds that the member concerned has crossed floor.

The Speaker’s role is limited to forwarding a reference to the effect to Chief Election Commissioner (CEC) about the defection of a member. There are not very many examples where the MPs were thrown out of the parliament on the charge of abandoning their parties. However, instances are available when a dispute ensued between the Speaker and the ECP over the question of disqualification of a member for having deserted his party.

The most important case was that of Syed Yusuf Raza Gilani after he was convicted by a seven-member Supreme Court bench on the contempt charge. In May, 2012, the then speaker, Dr Fehmida Mirza, held in a five-page ruling that no question of disqualification of Gilani had arisen under Article 63(2). She had refused to send a reference against him to the CEC and dismissed the apex court order and a subsequent petition that sought his disqualification.

“I am of the view that the charges against Gilani are not relatable to the grounds mentioned in Article 63(g)(h)(i),” she wrote. Her decision had triggered a fresh constitutional and legal debate.

On April 26, 2012, the apex court had convicted Gilani over his refusal to write a letter to the Swiss authorities asking them to open graft charges against the then president Asif Ali Zardari. The detailed verdict was issued on May 8. The court had, through official channels, conveyed both orders to the Speaker.

Several clear cut conditions have to be met before the seat of a defector is declared vacant by the ECP after receiving a reference from the Speaker or the Senate chairman. It has been unambiguously provided in Article 63A of the Constitution as to when the defection clause will be invoked. It doesn’t apply to every vote that an MP casts against the direction or policy of his parliamentary party.

There are only three occasions when a lawmaker will be hit by Article 63A - one, when a member of a parliamentary party composed of a single political party resigns from its membership or joins another party; two, when he votes or abstains from voting contrary to any direction issued by his party to which he belongs in relation to the election of the prime minister or a vote of confidence or a vote of no-trust; and three, when he goes against the party direction during voting on the money bill or a constitutional amendment.

In the light of these stipulations, it is evident that a legislator will not be affected by Article 63A if he votes against his party’s policy during voting on a no-trust resolution against the Speaker or the Senate chairman or ordinary legislation.

The article says when an MP violates any of the three specific conditions, he may be declared in writing by the party head (any person, by whatever name called, declared as such by the parliamentary party) to have defected, and the party head may forward a copy of the declaration to the Speaker and the CEC and will similarly forward it to the member concerned.

However, before making such a declaration, the party head will provide the concerned member with an opportunity to show cause as to why such declaration may not be made against him. A lawmaker will be deemed to be a member of a parliamentary party if he, having been elected as a candidate or nominee of a political party which constitutes the parliamentary party or having been elected otherwise than as a candidate or nominee of a political party, has become its member after such election by means of a declaration in writing.

Upon receipt of the declaration, the Speaker will, within two days, refer, and in case he fails to do so it will be deemed that he has referred the declaration to the CEC, who will lay it before the ECP for decision confirming it or otherwise within thirty days of its receipt by the CEC.

When the ECP confirms the declaration, the concerned MP will cease to be a lawmaker and his seat will become vacant. Any party aggrieved by the ECP decision may, within 30 days, prefer an appeal to the Supreme Court, which will decide the matter within 90 days.

It is noteworthy that the ballot cast by an MP during the voting on the no-trust resolution will be valid, and the question of his disqualification because of his defection will arise and be decided later through a process that will take time specified in Article 63A.