ISLAMABAD: The Supreme Court said that defections are an attack on the integrity and cohesion of the political parties, which constitute a direct negation and denial of the rights encompassed in Article 17(2) of the Constitution.

As per details, the majority members of a five-judge bench on Friday announced its detailed judgment on Article 63A of the Constitution.

The bench, headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Muneeb Akhtar, and Justice Jamal Khan Mandokhail with majority of three to two on May 17, 2022 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.

Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail, who dissented, have already announced their detailed judgments.

The 95-page judgment, authored by Justice Muneeb Akhtar, stated there can be no “healthy” operating of, and among, the parties in the external aspect if defections are not thwarted and defeated. It maintained that the defector’s proscribed vote seeks to disturb, and materially and adversely alter, the balance among the political parties, which must necessarily be maintained if they are to compete and vie for political power in the manner contemplated by Article 17(2).

The judgment said if the vote is disregarded then it is a huge deterrence to, and disincentive against, even trying to induce or seek or engineer the casting of the vote in defiance.

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The integrated approach that applies on a holistic understanding and application of Article 63A has a “chilling effect” on the “buyers”, and not just the “sellers”.

The judgment said that the member in default, who cast the proscribed vote, is not ipso facto de-seated. The reason is that the Article has placed a “gateway” along this pathway, which is to leave it to the discretion of the Party Head whether to proceed to making a declaration of defection, which must precede the de-seating.

On the role of the Parliamentary Party, the judgment said in constitutional terms, it is for the parliamentary party itself to decide whether the direction is to be issued. In practice of course, in most situations it may well be that the position of the parliamentary party on the one hand and the controlling organs of the political party including the Party Head are aligned so that in most cases it may not even be necessary for the formal issuance of a direction.

This alignment may well be regarded, in practice, as the normal or ordinary state of affairs and suffice for most situations. But the constitutional position is as set out above.

One point that needs also to be addressed here is as to how the direction for purposes of para (b), if a decision in this regard is taken by a parliamentary party, is to be arrived at and communicated.

A decision in terms of either of the paras of clause (1) of Article 63A, whether by a parliamentary party to issue a direction or the Party Head to proceed to the making of a declaration of defection, cannot be regarded simply as the exercise of a legal power in quite the same manner as the conferment of a statutory power on an authority or forum.

The reason is that a decision under Article 63A has necessarily a strong political element to it. Furthermore, especially in relation to an election or a vote of confidence or no-confidence, the political situation may be fluid and change by the hour. The decision to exercise the power may have to be taken on the spur of the moment. Therefore, it may not be appropriate to insist on the full panoply of procedural formalities and requirements that usually attend to the exercise of a statutory power.

Of course, to an extent clause (1) itself (in its proviso) lays down certain procedural requirements, and these are clearly intended to be of a mandatory nature. However, some care must be taken before insisting on other such requirements or formalities such as, e.g., the holding of a meeting of the parliamentary party before it takes a decision to issue a direction or an insistence that the internal procedures of the political party, if any, be rigidly followed.

The parliamentary party of a political party in an Assembly is a well defined body, known to all concerned. Since it is a body of parliamentarians, any decision in terms of para (b) must have the support of (at least) the bare majority of the parliamentary party. The taking of the decision and its communication may; therefore, be established in such credible manner as satisfies the forum concerned, and it would not be appropriate to lay down any hard or fast rule in this regard. The totality of the circumstances in each actual situation must be kept in mind and given due weight and regard.

The Court; however, suggested that a copy of the direction, duly supported by the signatures of the majority of the parliamentary party, should be deposited with the secretariat of the Assembly/ House by or before the time it takes up for voting the matter to which it relates.

While notice ought also to be given to the members of the parliamentary party of the direction through any feasible means (including modern communication and messaging facilities), the deposit of the same in terms just stated will be deemed notice to them all.

In any case it should at all times be regarded as the responsibility of a member of a parliamentary party to satisfy himself, before voting or abstaining to vote on any matter covered by Article 63A(1)(b), whether his party has (or has not) issued a direction in terms thereof.

Regarding the lifetime disqualification on the basis of defection, the judgment said since Article 63(1) (p) of the constitution confers the necessary competence on Parliament; therefore it left the matter to the legislature.

It noted if a member who casts a proscribed vote is de-seated he can seek re-election in the bye-election. If he chooses to contest the same, he may do so as an “independent” or even on the ticket of those who sought, engineered, welcomed, brought about and/ or rewarded the defection. If he loses then the ensuing humiliation is also a punishment of sorts, both for the defector and his puppeteers. However, the cyclical nature of the electoral process must also be taken into consideration.

The judgment said that the political power is not, and cannot be, an end in itself but rather a means to a greater goal and objective, namely the ability of the political party to implement its program for the welfare of the people and wellbeing of the country is also a given. But all that is to be done, in the context of our system of parliamentary democracy, by a political party (or alliance or combination of such parties) which is given the mandate (i.e., political power) by the people through elections contested by the said party.

It said that the party is no placeholder for the members. It holds the rights under Article 17(2) in its own right. The role that the Constitution contemplates for political parties, so forcefully and repeatedly stated in the various judgments of this Court, is for them to be institutions, and not mere associations. And such institutions are to exist and last across decades if not generations.

Copyright Business Recorder, 2022


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