Defection of MPAs: A politically strong but legally weak case of PTI

muhammadhafeezmalik · May 12, 2022

Defection of MPAs: A politically strong but legally weak case of PTI

PTI MPAs have argued that the parliamentary party did not give any direction to them for CM Punjab election, there was no PTI candidate for CM so MPAs were free to vote to any candidate

ISLAMABAD: There was no ambiguity in the mind of Ahmed Bilal Mehboob that the defection of the dissenting PTI MPAs, who voted for Hamza Shehbaz, was an open and shut case. But he, the founder of PILDAT further explained in a tweet, had to revisit his views after hearing the arguments of the lawyer representing the provincial lawmakers loyal to Jehangir Khan Tareen.

What changed his mind was the point articulated by the lawyer that the PTI’s parliamentary leader in Punjab Assembly never issued a formal direction regarding who to vote for. Therefore, “I no longer consider it an open [and] shut case,” Mehboob tweeted. Reference against the dissenting MPAs was sent by Punjab Assembly Speaker and has been taken up by the Election Commission of Pakistan.

The PTI wants this case decided immediately. If not that, the membership of the referred MPAs should be suspended in order to stop them from casting vote in the no-confidence motion against the Punjab Assembly’s Speaker, Chaudhry Pervez Elahi. However, the proceeding of the case was adjourned till May 13. The arguments presented by the dissenting MPAs are strong enough to persuade a person like Mehboob whose organisation has long been involved in legislative matters and the functioning of parliamentary democracy.

However, before discussing the position taken by the dissenters, it is also important to highlight what remains largely hidden from the public eye in the ongoing debate. This is related to the fact that the MPAs facing reference hadn’t violated the party line because there was no party candidate to vote for. The one nominated, Elahi, had boycotted the election. The Supreme Court had already declared in a similar nature of case that casting vote to an opposing candidate in such a scenario won’t constitute defection. The case decided in 2018 was heard by the now-former chief justice Saqib Nisar and the present chief justice Umar Ata Bandial. This was related to the election of district Nazim and Naib Nazim in Lakki Marwat (Khyber Pakhtunkhwa) in 2015. (PTI-PPP alliance was beneficiary at that time)

There, JUIF had an alliance with ANP whereas PTI and PPP alliance was in the opposite camp. While the former alliance announced a boycott of the election of district nazim, as many as five JUIF members of district council voted for the PTI-PPP candidate who won. As the defection clause was invoked, the defectors were de-seated by the ECP. However, in the appeal against the ECP’s decision in SC, they argued that since their party had boycotted the election of nazim, voting for the remaining candidate was not tantamount to voting against the JUIF candidate, a point well taken by the court. “Therefore, notwithstanding the fact that whether there was any specific or implied direction issued by the party head to cast the vote in favour of party nominated candidate or not, the same (direction) even if issued became redundant when the party nominated candidates boycotted the election.” The decision further noted: “In the show cause notice it was alleged that the appellants cast their votes against the party candidates as such have defected …. In the reply thereto, it was specifically mentioned by appellant No.1 has stated that the future plan and the party policy regarding the election of Nazim/ Naib Nazim was not clear, even certain meeting in that regard were also conducted; at the time of voting only five votes were cast by the members of JUIF and then at once they left the house; in those circumstances, in absence of direction from the party leadership, they cast their votes in favour of PPP candidate to avoid the dissolution of the house.”

Now, almost the same position has been taken by PTI’s defectors as party boycotted the election of the leader of the house in Punjab Assembly and no direction was given to the party members hence they didn’t vote against the party-nominated candidate because Article 63-A could be invoked only if a lawmaker “votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to” the election of CM/PM, vote of no confidence and money bill.

Another plea the dissenting MPAs take is that there was no clear instruction from the parliamentary leader in writing that what is the party position on the election of the leader of the house. In Imran Khan Niazi vs. Ayesha Gulalai case, the Supreme Court held that “there has to be concrete and unassailable evidence establishing the instruction of the parliamentary party and that such instruction has to be conveyed to the Members of Parliament.”

Moreover, there was no instruction about the course of action in the event of a boycott hence this was no violation. As for as the authority of sending reference is concerned, it is to be done through the presiding officer who was Dost Muhammad Mazari on the day of election. Moreover, Pervez Elahi, who himself was a candidate for the CMship, couldn’t send the reference as speaker because his self-interest conflicted with the duties owed by him as Speaker Punjab Assembly.

The dissenting MPAs also give a moral in their defence. Imran Khan, they say, had nominated a person as party candidate who was not only from the outside of PTI, Khan had long been declaring him the biggest dacoit of Punjab. We started believing what Imran said of him, they say, and it was difficult for them to digest the announcement of his name as the party’s candidate for the chief ministership which was done without any consultation.