ISLAMABAD: The Supreme Court of Pakistan Tuesday ruled that the dissident members of the parliament (MPs) cannot cast their votes against their parliamentary party’s directives.
The SC five member bench headed by Chief Justice of Pakistan Umart Atta Bandial comprising Justice Ijazul Ahsan, Justice Mazhar Alam Miankhel, Justice Munib Akhtar, and Justice Jamal Khan Mandokhail.
The country’s chief justice had formed a five-member larger bench — selecting a judge from each province.
The court, giving its verdict on the presidential reference seeking the interpretation of Article 63(A) of the constitution, said that the article concerned cannot be interpreted alone.
The Supreme Court wrapped up the hearing of reference filed by President Arif Alvi nearly two months back.
In the majority verdict of 3-2, Chief Justice of Pakistan Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Munib Akhtar agreed that dissident members’ votes should not be counted, while Justice Jamal Mandokhail and Justice Mazhar Alam Khan Miankhel disagreed.
The decision comes after the presidential reference, the hearings for which continued for 58 days since its filing on March 21. The SC had reserved the verdict today afternoon after 20 hearings.
The SC stated that the first question deals with the “proper approach to be taken to the interpretation and application of Article 63A of the Constitution”.
On this, the bench ruled that the “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,” said the verdict.
The court said that the two provisions are intertwined. It explained that Article 63A acts to “protect, and ensure the continued coherence of, political parties in the legislative arena”. It added that the parties act “are the primary actors” in the parliamentary democracy.
“Political parties are an integral aspect of the bedrock on which our democracy rests. Their destabilisation tends to shake the bedrock, which can potentially put democracy itself in peril,” said the verdict.
The bench also stated that defections can “delegitimise parliamentary democracy itself”, adding that it condemns that act which is a “cancer afflicting the body politic”.
“They cannot be countenanced,” said the verdict.
“It follows that Article 63A must be interpreted in a purposive and robust manner, which accords with its spirit and intent. Ideally, the Article 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 verdict further added that 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.”
On the second question, the bench ruled in its “view” an MP’s vote cast contrary to party directions “cannot be counted and must be disregarded”.
“This is so regardless of whether the party head, subsequent to such vote, proceeds to take, or refrains from taking, an action that would result in a declaration of defection. The second question referred to this Court stands answered in the foregoing terms,” the court said.
In response to the third question regarding the disqualification of members, the top court rejected the PTI’s plea, saving the lawmakers from permanently being barred from the Parliament.
The bench said that in its opinion a “declaration of defection” under Article 63A can be dealt with by the “appropriate law made by Parliament”.
“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,” said the verdict.
The fourth question submitted by the president was returned by the court as it was “stated in terms” that were “vague, and too broad and general”.
The minority judgement — issued by Justice Mandokhail and Justice Miankhel — mentioned that it did not agree with the majority verdict of the top court.
“The Constitution of Pakistan provides a complete code for parliamentary democracy,” the minority decision said, adding that in case a member defects from their party, the seat will be considered vacant.
The minority judgement maintained that the outcomes provided in Article 63(A) were more than enough.
