Interpretation of Article 63A by SC: Not counting votes of dissidents makes no sense: minority opinion

ISLAMABAD: The minority judges of the Supreme Court bench, which rendered an opinion on Presidential Reference for the interpretation of Article 63A of Constitution, said not counting the vote of a legislator, cast contrary to party head’s direction, makes no sense.

The Supreme Court on May 17, 2022 with majority of three to two held that the vote of any member of a Parliamentary Party in a House that is cast contrary to any direction in terms of para (b) of clause (1) of Article 63A cannot be counted and must be disregarded.

Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Muneeb Akhtar had an opinion that vote cast contrary to party head’s direction must be disregarded, while Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail had dissented with the majority.

Both the minority judges on Thursday released judgment of their short order. They have the opinion that Article 63A of the Constitution is a complete code in itself, which provides a comprehensive procedure regarding defection of a member of the Parliament and consequences thereof.

Justice Mazhar Alam Khan, who is going to be superannuated on 13.07.2022, in his detail opinion wrote: “I am utterly unable to understand how the vote (being cast contrary to the direction of the Parliamentary Party in a House), on the basis of which he would be proceeded against for defection, would not be counted in the absence of an express provision of the Constitution.”

“The interpretation as offered by majority would render the provisions of the Article 95 & 136 (vote of no-confidence against Prime Minister & Chief Minister) as redundant as no resolution for no-confidence would ever succeed.”

“The argument that there is a vacuum which necessitates interference of this Court is untenable as the provisions of Article 63A are simple, clear and unambiguous,” he further wrote.

Justice Jamal stated that to exclude from counting any vote so cast, makes no sense, as there is no restriction in the Constitution upon counting of the votes so cast. The only consequence upon casting or abstaining from casting vote of a member is prescribed in Article 63A of the Constitution.

“The vote in the Parliament is not the fundamental right of the party; rather it is a fundamental right of a member, to be exercised in the interest of the people. The defector is since ready and willing to pay the price for defection; therefore, the right of the political party stands protected to award its symbol to any person to contest by-election,” he wrote.

Justice Mazhar Alam stated that all the questions referred to this Court (by the President of Pakistan), with the cumulative effect, are of the type that answer to any question in affirmative would lead this Court to exceed and overstep its domain. “This in other words would mean that this Court is putting something new in the text of the Article which is not even the mandate of the Constitution. It is for the Constitution makers to remove this cancerous tumour through a surgical operation.”

Justice Jamal wrote that the judges while interpreting any provisions of the Constitution should limit themselves to a fair reading of the words of the Constitution and the intention of its framer, and no more. Otherwise, Judges enter the realm of creating, not just interpreting the Constitution. The wordings of Article 63A are clear enough and free from any doubt to judge the intent of the Constitution’s framers. Thus, it needs no further interpretation.

Copyright Business Recorder, 2022