Dissident lawmakers vote won’t be counted: SC


Islamabad: The Supreme Court this week announced its opinion on presidential reference seeking interpretation of Article 63-A of the Constitution and stated that the vote of dissident lawmakers would not be counted in the Parliament.

In the majority verdict of 3-2, Chief Justice of Pakistan Umar Ata Bandial, Justice Ijaz Ul Ahsan, and Justice Munib Akhtar agreed that dissident members’ votes should not be counted, while Justice Jamal Khan Mandokhail and Justice Mazhar Alam Khan Miankhel disagreed with the verdict.

Concerning the issue of lifetime disqualification of the dissident members, the court declined from issuing a verdict and said that since it was a constitutional issue under Article 63-A, therefore, the Parliament should look into the issue.

A five-member larger bench, headed by Chief Justice Umar Ata Bandial, comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, announced the decision on Tuesday evening.

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 63A 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 63A 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 63A 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 63A 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).