Dost Mazari’s ruling sparks constitutional debate

KARACHI: After Deputy Speaker Dost Mohammad Mazari ruled on Friday that PMLQ members’ votes would not be counted for the run-off election for the position of the chief minister of Punjab, in light of PML-Q party head Chaudhry Shujaat Hussain’s letter, the matter has once again landed in the Supreme Court.

The deputy speaker’s ruling has sparked a debate among lawyers and constitutional experts on the legalities involved in the matter — the consensus being that, while the deputy speaker’s ruling goes against constitutional provisions, it is a consequence largely of the May Supreme Court ruling on Article 63A.

Supreme Court Bar Association (SCBA) President Ahsan Bhoon, speaking to Geo News, said that he agreed with the dissenting notes in the Supreme Court’s Article 63A verdict of May this year.

Bhoon says that the verdict had written the words ‘party head’ — as opposed to what the constitution says — and that this issue will have to be interpreted by the Supreme Court, adding, “As SCBA president my petition for review regarding the SC Article 63A verdict is still pending.”

Bhoon also feels that the Supreme Court needs to call a full court for this matter: “I request the chief justice of Pakistan to call a full court on this to handle this situation and review all pending petitions on this.”

Barrister Salahuddin Ahmed, former president of the Sindh High Court Bar Association, says the Punjab Assembly proceedings were “an unfortunate episode. There is nothing in the constitution that allows a speaker to disregard the vote of any member of the House. The person receiving the majority votes should be duly elected. But sadly, this door was opened by the Supreme Court itself through its remoulding of the clear language of Article 63A”.

According to Pildat President Ahmed Bilal Mehboob: “Article 63A(b) is very clear that the direction to legislators has to be issued by the parliamentary party and not the party head. In this particular case, since the parliamentary party had decided to give direction to the PMLQ members to vote for Chaudhry Pervaiz Elahi that was supposed to be followed. The party head (Chaudhry Shujaat) giving direction is not correct per the constitution.”

Mehmood elaborates on the difference between the role of party head and parliamentary party in that: “the constitution gives the party head the right to give a declaration about the defection of a member if that person goes against the direction of the party. So there are two different roles. The role about the direction is given to the parliamentary party while the role about declaring the defection of a member is given to the party head.”

About what happens now, Mehboob is of the view, “Even if Hamza takes oath, the Supreme Court can undo that. This will continue in the court for quite some time; because I think some more legal points will also have to be thrashed out which were not properly addressed in the previous judgement but it will certainly now be in a court of law rather than political parties or parliament. Political parties and parliament will continue to lose their authority and their ability to make decisions as they have been doing for the last few months.”

Barrister Ali Zafar, talking to Geo News on Friday night, was of the opinion that the deputy speaker’s ruling is against the constitution and the law. Article 63A categorically says that if a parliamentary party makes a decision to vote a certain way and if a member chooses to vote another way he/she is disqualified...it does not mention the ‘party head’; you only have to follow the parliamentary party....let them tell you what will happen now...in a few days the Supreme Court will declare the deputy speaker’s decision unconstitutional — like it did in the case of the National Assembly deputy speaker.”

Lawyer Abdul Moiz Jaferii says that: “What happened on Friday was similar to the usurpation we witnessed in April when Qasim Suri proceeded to interpret Article 63A and Article 5 of the constitution in a way that beggared belief. This is a continuation of the way the SC in its own extraordinary way interpreted [Article] 63A to effectively render the processes within it redundant”.

Lawyer Abuzar Salman Khan Niazi feels that “Article 63A states the vote has to be in line with the decision of the parliamentary party, not the party head. The party head only comes into play when there is an issue of show cause or violation of parliamentary party directions. Chaudhry Shujaat’s letter or opinion has no value at all. So [Dost] Mazari’s ruling is similar to that of Qasim Suri. Totally illegal. And unconstitutional. Eventually, the Supreme Court will now decide. In my view, the PML-N and PTI have switched sides as far as legal arguments are concerned. Now the PML-N will use the same arguments the PTI used three months back — and vice versa.”

For Abdul Moiz Jaferii, “There is a greater issue at stake here — the judicial encroachment on parliamentary functions which has led to these kinds of theatrics played by single-seat members against the vote of the majority members. This has only been enabled by the SC intervening through answering a political question disguised as a reference to the SC for an opinion. And it has only been made possible by these questions having been answered in seemingly legal terms. At times what this does is go against the simple meaning of the constitution and what is being said.”

Jaferii does add a word of caution though, regarding a black and white reading of the situation: “I don’t think it’s as cut and dry as how some people are putting it whereby they are thinking that a parliamentary party is separate and party head is separate. I think it’s vague enough to construe it to mean that the parliamentary party is the party head. So it’s not as easy to disregard Chaudhry Shujaat’s letter as having no value whatsoever. But it is easy to point out that this is not a speaker’s job to decide what votes can be rejected...”

Lawyer Salaar Khan says we are back to where we were some time back: “A delayed session, an overly eager deputy speaker, parliamentary votes being etched off the tally, talks of a cryptic letter: there’s a fair bit of deja vu here. And all eyes back on the same court that got us here in the first place. Back in May, the SC decided that regardless of whether defecting members of a parliamentary party were later penalized, their votes couldn’t be counted. That decision was criticized by many for depriving those members of their right to vote according to their own will and conscience. But, regardless of whether you criticized or supported that decision, it is now the law. What’s less clear is whether these were even ‘defecting’ votes to begin with. The constitution speaks of disqualification for voting contrary to the directions of a ‘parliamentary party’. It also speaks of disciplinary proceedings initiated subsequently by the ‘head of a parliamentary party’. Arguably, the main question before the Supreme Court, now, will be whether the two are interchangeable.”

Talking about the confusion between ‘party head’ and ‘parliamentary party’, Barrister Salahuddin Ahmed says that: “In respect of the debate as to who was competent to give the direction to PML-Q members, the constitution uses the phrase ‘parliamentary party’ but does not clarify who is competent to take the decision on behalf of the parliamentary party. Can the party head take the decision or must it be taken by the majority of parliamentary party members in a meeting? Ordinarily, one would lean towards the latter interpretation. However, in the case of the PTI defectors in the Punjab Assembly, it was expressly argued that no meeting of the parliamentary party (ie the PTI MPAs) had been called nor any decision taken by them. This argument was rejected both by the ECP and they were disqualified. The ECP said the PTI leadership’s decision to support Pervaiz Elahi was widely known. This tends to favour the view that the decision is that of the party head. Obviously, the matter will now head back to the Supreme Court for clarification.”

Analyst Aasiya Riaz is of the view that: “The constitution is very clear. Article 63A only applies when a member votes or abstains contrary to any direction issued by the parliamentary party on four occasions: election of PM/CM; vote of confidence/no-confidence; money bill (budget); constitutional amendment. However the decision to seek a member’s disqualification can only come from the party head who is required to write to the presiding officer/speaker and CEC to proceed towards disqualification. However, with the SC decision to not count the votes cast by legislators in violation of their party’s stance while determining the outcome of a motion, the application of Article 63A has become complicated. One can’t find fault with today’s decision in the Punjab Assembly in the sense of the constitution and the SC verdict.”

She adds though: “This is not an outcome which is in keeping with the spirit of democracy. The PTI is the larger party and according to the public mandate, it has the right to elect the CM. Earlier in 2018, the PML-N had accepted the right of a larger party in the spirit of democratic traditions. While partisan politics is key to electoral democracy, taking partisanship to a level where it hurts the country, economy and economic future of the country cannot be the way to go forward.”

Lahore correspondent adds: Salman Akram Raja, in a twitter statement, said the party head canot stop the members of the parliamentary party from voting in accordance with the decision of the parliamentary party. He said that Article 63-A is clear.

“Some manipulations of the Constitution are sad, this one is just silly,” Raja added. Raja said that Deputy speaker ruling is travesty by the Deputy Speaker. All sides have tried to make a mockery of the Constitutional process when it has suited them to do so, Raja said.

He said that the Constitution functions meaningfully only when all entrusted with implementing it follow its text and its spirit regardless of partisan politics.