Article 63-A

EDITORIAL: A five-member Supreme Court bench headed by Chief Justice of Pakistan Qazi Faez Isa hearing a petition filed by the Supreme Court Bar Association (SCBA) has delivered its judgement, setting aside an earlier decision on Article 63-A of the Constitution, which deals with defection clause.

The issue had been hanging fire for over two years, i.e., since a bench led by the then CJP Umar Ata Bandial hearing a case challenging the election of Hamza Sharif as chief minister of Punjab with the support of PTI and PML-Q defectors, gave a controversial verdict. That led to junior Sharif stepping down and continual bickering about legal correctness of the decision, widely seen as having rendered the relevant constitutional provision virtually redundant.

Indeed, only the apex court in its wisdom can interpret the Constitution if there is some ambiguity.

But the said clause is clear where Article 63-A applies: election of a prime minister and/or a chief minister; a vote of confidence or no-confidence; a constitutional amendment bill; and the finance bill.

Any legislator who votes against the party line loses his or her seat as penalty. The penalty, of course, is meant to discourage horse-trading that has repeatedly been blighting the democratic process.

However, under the previous court order, the votes of those who voted against their party directions were not to be counted. Consequently, the no-confidence could never succeed.

Hence the critics have had a point in their insistence that the earlier order amounted to rewriting of an article of the Constitution.

The court now has held that the votes cast against party instructions would be counted. This can only be welcomed, though, it seems to be a case of doing the right thing at the wrong time, coming as it does at a moment when the polity is extremely polarised.

Even those expressing displeasure over the prior verdict have questioned the timing, wondering as to why could it not wait a few more months, considering that there is no urgency to provide justice to anyone.

Predictably, PTI secretary general Salman Akram Raja has described it as a “dark moment” as it would pave the way for the proposed highly contentious constitutional package’s passage – stalled due to lack of required number of votes — through defections, perpetuating the present setup based on “stolen mandate”.

The package has come under fire also from civil society as well as some legal experts apprehending that it would weaken the SC’s authority since the intended amendment, among other things, seeks to install a constitutional court. If at all it is needed, goes their argument, a good-faith step in that direction would be creation of a constitutional bench, like in India, within the SC.

A few leaked provisions of the otherwise secretive package, include trial of civilian leaders in military courts, apparently, to keep the incarcerated former prime minister and founder chairman of the PTI behind bars for the unforeseeable future.

That can come back to haunt those who now are working hard to have it approved.

So far, the JUI-F chief Maulana Fazl-ur Rehman has refused to play along, while PTI has said at least seven of its legislators have been ‘won over’ by the interested parties. Given the history of horse-trading in this county, it is not difficult to figure out how have they been won over.

Copyright Business Recorder, 2024