Chief Justice of Pakistan (CJP) Umar Ata Bandial Thursday observed that not counting a vote that had been cast during the no-trust proceedings against the prime minister would be ‘contemptuous’, adding that the real question was how long a dissident MNA could be disqualified for.
The chief justice observed that Article 63-A had laid out a procedure for disqualification of a parliamentarian over defection. He made these remarks during the hearing of a presidential reference seeking the apex court opinion on Article 63-A.
A five-member bench, comprising Justice Bandial, Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, heard the petition.
Justice Mandokhail questioned whether an MNA’s vote could be counted in the proceedings conducted before his de-seating, observing that there was no mention of not counting a vote in the 18th Amendment.
At this, Attorney General for Pakistan (AGP) Khalid Jawed Khan said the members elected to the assembly were bound by the party discipline.
The chief justice said the “spirit of Article 63-A cannot be ignored”. “It is not the court’s job to fill in the blanks. Such matters should be resolved in the parliament rather than through a reference,” he said.
Justice Bandial said the court also had to look at Article 55 related to quorum and voting in the NA.
However, another member of the bench, Justice Akhtar, observed that the purpose of Article 63-A was to stop defection from party policies.
“The party’s collective opinion is above an individual’s opinion,” he said. “The collective opinion is important for stability of democracy.”
He said one interpretation of Article 63-A was that the vote of dissidents should not be counted. Justice Akhtar further said the Constitution empowered the parliamentary party, and not the party’s leader.
Meanwhile, Justice Alam said nobody could be forced to cast their vote. Justice Mandokhail recalled that Balochistan Assembly members had brought a no-confidence resolution against their own party’s government.
At this, AGP Khan said that in that case both the opposing groups were from the Balochistan Awami Party (BAP). “Joining hands with the opposition is not the voice of conscience. If [dissident MNAs] are so conscientious, they can resign,” he added. Justice Mandokhail then questioned what would happen if an MNA “returned his seat”, saying that a lawmaker also had a “vote separate from his party”.
The chief justice, meanwhile, questioned the length of time an MNA could be disqualified for and when the process could begin. He also asked the AGP to argue on why the parliament could not settle every matter itself.
AGP Khan said the system could not work if every MNA acted on his own. Justice Alam observed that according to Article 63-A(4), cancellation of a party’s membership was tantamount to disqualification. The article concerned was “very clear”, he said. However, the attorney general argued that the real issue was about clarifying Article 63-A(4). “Someone who violates the Constitution by defection cannot be praised. We cannot read what’s not written in the Constitution. Article 62(1)(f) states that an MNA should be honest and righteous. “Should defecting from the party be rewarded? Can those who are dishonest be considered righteous?” he asked.
Justice Mandokhail replied that every MNA had the right to vote in accordance with Article 95, which deals with the procedure of bringing in a no-confidence motion against the prime minister. “If a vote can be cast, it can also be counted,” he observed, asking the AGP why the government was seeking the court’s opinion if it already had the answer.
“If you agree with this point, then withdraw this reference,” he added.
The AGP replied that Article 63-A would not be applicable without the MNA voting against party directives.
Justice Ahsan questioned the attorney general about the inquiry the Election Commission of Pakistan (ECP) would conduct based on the party head’s declaration. “Will the ECP decide whether the [declaration of] defection from the party is correct or not? Will the ECP’s work be limited to checking whether the procedure was followed?” The AGP replied that defecting from a party could “not be correct”.
Justice Mandokhel observed that Article 63-A was related to lawmakers’ disqualification. The AG said the party head could not issue a declaration in this regard, as there were relevant forums for it. “Members are bound to follow party directives under Article 63-A of the Constitution,” he told the court, adding that it was also applicable to voting on the prime minister’s election and the no-confidence vote.
Justice Ahsan remarked that the attorney general was “in fact talking about the difference between the voting rights of a member of the assembly and a common man”.
The AG responded that a vote cast by a member of the parliament could not be undone, adding that Article 17(2) encouraged voting on party lines rather than in an individual capacity.
“In the parliamentary system of governance, an individual political party’s legislation has no importance.”
However, Justice Mandokhail observed that the right to vote was granted to an individual and not to the party while Justice Akhtar remarked that “voting against the policy of a political party weakens it”.
The chief justice remarked that observation given in a court decision was very important.
The AG said the public mandate was represented in the parliament in a collective form, adding that political parties legislated for them.
Justice Mandokhail said the right to vote was granted to parliamentarians and not party members.
Meanwhile, Justice Ahsan said Article 63-A had been introduced to ensure discipline in the party.
Justice Akhtar observed that political parties were institutions that were weakened by disciplinary violations. “If the party line is not adhered to, the political party will be destroyed.” The lawmakers are bound to follow the policy of the political party they are affiliated with, Justice Muneeb Akhtar said.
The attorney general, while agreeing with the judge’s observation, said the Supreme Court had also previously adjudged that political parties were institutions.
Justice Akhtar added that the democratic system was weakened if a political party was not strong.
The attorney general said that despite the presidential system in the United States, a senator was not independent there.
“What is the difference between someone winning the election on a political party’s ticket and an independent member of the National Assembly?” Justice Mandokhel asked.
The AG responded: “If the independent member does not accept the party’s manifesto, he should resign. The ship cannot be changed after 2.5 years in a five-year assembly [tenure].”
“Are you asking us for life-time disqualification (of dissident MNAs)?” the CJP asked AGP Khan.
“The incumbent government had a very thin majority. Will [dissident MNAs] jump the ship after drowning the first [party]?” Justice Ahsan asked.
Justice Akhtar observed that Article 63-A directed lawmakers to vote in accordance with party lines “without looking at good or evil”.
“This is the real problem. The members going in different directions will cause chaos,” he added.
Justice Mandokhail questioned whether the AGP wanted to make the party head equivalent to a king, which the attorney general denied but said the government did not want the party head to become a “turncoat” either.
The chief justice questioned whether a lawmaker had the right to decide against party lines. Justice Ahsan also asked whether the government could be toppled by jumping ship, remarking that “most democratic governments are formed by a majority of a few votes.”
Justice Akhtar observed that even ordinary legislation would not be done if members continued to “jump” across party lines.
“If Pandora’s box is opened, the game of musical chairs will continue,” remarked Justice Ahsan.
The AGP contended that the matter was not limited to Article 63-A but to the “possible failure of the entire system”.
“If everyone does what they want, the political party will become a crowd rather than an institution. Making individuals powerful destroys the institution,” remarked Justice Akhtar.
