President seeks interpretation of Article 63(A)

ISLAMABAD: The federal government on Monday sought the opinion of Supreme Court (SC) on the questions of law of public importance regarding Article 63(A) of the Constitution relating to defection of parliamentarians.

President Arif Alvi, in exercise of powers conferred on him under Article 186 of the Constitution of Pakistan, filed a Presidential Reference for the interpretation of Article 63(A) of the Constitution. The president, while referring to the article, said in the first place that if a member is elected on the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate.

If his conscience dictates to him so, or he considers it expedient, the only course open to him is to resign to shed off his representative character which he no longer represents and to fight a re-election. “This will make him honourable, create clean politics, and emergence of principled leadership possible,” the reference says. The president has referred to apex court judgment, authored by Justice Shafiur Rehman in Khwaja Ahmad Tariq Rahim vs Federation of Pakistan (PLD 1992 SC 646), holding that on account of cancerous vice of floor crossings, Pakistan was unable to achieve stability in the polity of the country. Similarly, the reference also cited judgment of the apex court authored by Ajmal Mian, former Chief Justice in Wukala Mahaz Barai Tahafaz Dastoor vs Federation of Pakistan (PLD 1998 SC 1263).

The Presidential Reference questioned as to whether keeping in view the scheme and spirit of the Constitution, which enshrines democratic values, customs and norms and provides for parliamentary form of government, conducted through the chosen representatives of the people, being carriers of ‘Amanat’ [Trust], which of the following two interpretations of Article 63(A) of the Constitution is to be adopted and implemented to achieve the constitutional objective of curbing the menace of defections and purification of the electoral process and democratic accountability namely (a) Interpretation of Article 63(A) in a manner that ‘Khiyanat’ [Breach of Trust] by way of defections warrant no pre-emptive action except for de-seating the member as per the prescribed procedure with no further restriction or curbs from seeking election afresh;

Or a robust, purpose oriented and meaningful interpretation of Article 63(A), which visualises this provision as prophylactic enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralising the effects of vitiated vote, followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct;

“Where a Member engages in constitutionally prohibited and morally reprehensible act of defection, can the member nevertheless claim a vested right to have his vote counted and given equal weightage or there exist or is be read into the Constitution restriction to exclude such tainted votes from the vote count?

“Where a member who could, but did not, hear the voice of his conscience by resigning from his existing seat in the Assembly and has been finally declared to have committed defection after exhausting the procedure prescribed in Article 63(A) of the Constitution including appeal to the Supreme Court under Article 63(A)(5), he can no longer be treated to be sagacious, righteous, non-profligate, honest and ameen and, therefore, stands disqualified for life?,” says the reference.

The reference asked as to what other measures and steps can be undertaken within the existing constitutional and legal framework to curb, deter and eradicate the cancerous practice of defection, floor crossing and vote buying?

The President submitted that the questions of law of public importance revolving around interpretation of Article 63(A) of the Constitution have arisen in the context of the unending malaise of floor crossing and defections that have sullied and damaged the purity of the democratic process in the country for decades.

The President pointed out that some of the presently defecting members have even publicly admitted to defection in interviews to the media with evident pride and further commitment to stay engaged in this immoral trade as the prima facie consequence is innocuous while gains in cash and kind may be colossal without any possibility of loss of membership of Parliament for life.

Unless this menace is timely and forcefully rooted out, a truly democratic polity shall forever remain an unfilled distant dream and ambition, says the Reference.

It further stated that political parties are the backbone in a parliamentary form of government and are ultimately accountable to the people through periodic elections in accordance with the provisions of the Constitution.

In the scheme of the Constitution, the elected members of the Assemblies are not absolutely free agents of their will as such, says the reference adding that having been elected on party ticket, they are bound by party discipline and remain accountable as per the party manifesto.

It was further stated that the same time, these elected members, though elected on party tickets and manifesto, are not mere rubber stamp devoid of any capacity or ability to think and act independently and conscientiously.

“Each member of the Assembly is ultimately bound by his conscience and when he is compelled to vote or act contrary to his conscience by his party, he must hear the voice of conscience and resign from the membership of the party and the Assembly and seek the mandate of the electorate afresh independently or of any other party ticket.”

It further submitted that the Constitution does not completely prohibit members from deviating from party lines on multiple issues. In fact, such conduct may occasionally make political parties more responsive and democratic.

However, on certain matters as specified in Article 63(A) of the Constitution, the freedom of the members to disagree with party head’s direction is restrained and circumscribed.

This is all the dominant objective for enactment of Article 63(A) was to root out the curse of horse trading as witnessed historically.

The President stated that it is evident from the overall constitutional scheme that defection/ floor crossing is a morally reprehensible and destructive act, which shake the confidence of the public in the democratic process.

“Owing to the weak interpretation of Article 63(A) entailing no prolonged disqualification, such members first enrich themselves and then come back to remain available to the highest bidder in the next round perpetuating this cancer, says the reference.

It further stated that the true spirit of the Constitution’s anti-defection provision could be redeemed by treating the vote of defecting member as a “challenged or disputed vote” liable to be excluded from vote count till the determination of the issue of defection of the voting member in the manner provided in Article 63(A) of the Constitution.

“Therefore, there can be no valid or cogent reason or justification to treat this cancer as an innocuous and pardonable requiring no more than de-seating of the incumbent and allowing him a fresh opportunity to get re-elected soon thereafter.

The Reference pointed out that constitutional qualifications and disqualifications enshrined in Articles 62 and 63 of the Constitution were also lying dormant and honoured more in breach till the time that this Honourable Court adopted a robust, meaningful and purpose oriented interpretation of these constitutional qualifications and disqualifications.

It further stated that if the constitutional disapproval and prohibition against defection is effectively enforced with deterrence for future as well, many such members shall stand disqualified for life under Article 62(1)(f) and will never be able to pollute democratic streams.

Such a robust and purpose oriented interpretation of Articles 62 and 63(A) by this court would advance a highly desirable constitutional goal by shutting the doors of Parliament for habitual turncoats who have converted the honourable, elevated and trustworthy status of a Member of Parliament or Provincial Assembly into a tradable commodity eternally soliciting highest bidders.

The reference submitted that Article 63(A) itself provides appeal to the Supreme Court, adding that in any case where the apex court sustains a finding of defection against a particular member, it clearly amounts to a declaration by a court within the meaning of Article 62(1)(f) entailing lifelong disqualification for those declared as defectors.

Mere de-seating from present membership of the assembly or denying them access to the assemblies for any shorter duration especially close to the end of the terms of the assembly would not really deter such members reared in the culture of shifting loyalties for self enrichment.

The President stated that a robust interpretation of Articles 62 and 63(A) of the Constitution by this Court at this critical juncture would not only salvage the representative institutions but also the democratic process itself and restore the faith of the people in democracy.

None of the many disqualifications mentioned in Article 63 resulting in disqualification for a specified period is more damaging, pervasive and reprehensible than the return of a declared and habitual defector to parliament again and again, says the reference.

Therefore, the most suitable and appropriate disqualification for a declared defector is disqualification for life as provided under Article 62(1)(f), says the reference adding that such members must never be allowed to return to Parliament nor their tainted votes be counted in any constitutional or democratic exercise.

The Reference pleaded that the court may be pleased to answer the questions of law so as to purify and strengthen the democratic process worthy of people’s respect and trust and forever eradicate the menace of defections.