SC forms larger bench on presidential reference seeking opinion on Article 63-A
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Hasnaat Maik
May 16, 2022
ISLAMABAD: The Supreme Court of Pakistan has announced that it will conclude hearing on presidential reference — filed by the PTI government before its ouster — tomorrow (Tuesday), seeking interpretation and scope of Article 63-A of the Constitution.
“We would like to conclude proceedings tomorrow,” said Chief Justice of Pakistan (CJP) Umar Ata Bandial on Monday while hearing the presidential reference related to disqualification of legislators over defection.
During the hearing, CJP Bandial noted that under Article 63-A of the Constitution, the party head has power to override the political party's direction.
He observed that if party head condones wrongdoing of a member then it would be a mockery of the Constitution and democracy. “It will also be malafide exercise by party head,” Justice Bandial remarked.
Justice Ijazul Ahsan, who is a member of five-judge bench headed by the CJP, said that the Constitution does not condone the defection. He said that few individuals could not be allowed to derail the system and democracy and added that Constitution empowered the court to defend it.
When Balochistan National Party (BNP) counsel Mustafa Ramday suggested the bench to not allow political parties to use its shoulder to decide political disputes, Justice Ahsan noted that it is not obligatory upon court to take up every political matter.
He added that the court decides maintainability of the petition first then give its decision irrespective of whether its suits one party or not.
“How democracy will work if every member acts as he pleases,” remarked Justice Ahsan.
Advocate Ramday said that the presidential reference was filed for political gains, adding that Article 95 could not be rendered ineffective through Article 63-A. On which the chief justice questioned whether the members were allowed to vote against their prime minister under Article 95? The advocate responded that Article-95 allows members to vote against party discipline.
“With this argument you have abolished the political party, in this way the political party will become a ‘Tea Party’,” the CJP said in response.
SC to conclude hearing on Article 63-A reference tomorrow
Few individuals could not be allowed to derail system and democracy, remarks Justice Ijazul AhsanHasnaat Maik
May 16, 2022
ISLAMABAD: The Supreme Court of Pakistan has announced that it will conclude hearing on presidential reference — filed by the PTI government before its ouster — tomorrow (Tuesday), seeking interpretation and scope of Article 63-A of the Constitution.
“We would like to conclude proceedings tomorrow,” said Chief Justice of Pakistan (CJP) Umar Ata Bandial on Monday while hearing the presidential reference related to disqualification of legislators over defection.
During the hearing, CJP Bandial noted that under Article 63-A of the Constitution, the party head has power to override the political party's direction.
He observed that if party head condones wrongdoing of a member then it would be a mockery of the Constitution and democracy. “It will also be malafide exercise by party head,” Justice Bandial remarked.
Justice Ijazul Ahsan, who is a member of five-judge bench headed by the CJP, said that the Constitution does not condone the defection. He said that few individuals could not be allowed to derail the system and democracy and added that Constitution empowered the court to defend it.
When Balochistan National Party (BNP) counsel Mustafa Ramday suggested the bench to not allow political parties to use its shoulder to decide political disputes, Justice Ahsan noted that it is not obligatory upon court to take up every political matter.
He added that the court decides maintainability of the petition first then give its decision irrespective of whether its suits one party or not.
“How democracy will work if every member acts as he pleases,” remarked Justice Ahsan.
Advocate Ramday said that the presidential reference was filed for political gains, adding that Article 95 could not be rendered ineffective through Article 63-A. On which the chief justice questioned whether the members were allowed to vote against their prime minister under Article 95? The advocate responded that Article-95 allows members to vote against party discipline.
“With this argument you have abolished the political party, in this way the political party will become a ‘Tea Party’,” the CJP said in response.
ghazi52
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17 May, 2022
The Supreme Court (SC) on Tuesday announced that parliamentarians cannot vote against their party policy, adding that the votes of dissident lawmakers will not be counted, Aaj News reported.
The court, issuing its verdict on the presidential reference that sought its interpretation of Article 63-A of the Constitution, which pertains to the disqualification of lawmakers over defection, said that the "article concerned cannot be interpreted alone."
The verdict by the top court was a 3-2 split decision, with a majority of the judges not allowing lawmakers to vote against the party line in four instances outlined under Article 63-A. These four instances are the election of a prime minister and chief minister; a vote of confidence or no-confidence; a Constitution amendment bill; and a money bill.
The court further announced that the parliament should legislate to decide on the issue of disqualification of dissident lawmakers.
The verdict noted that defection could "derail parliamentary democracy and destabilise political parties".
The top court also said that the rights of political parties had been underlined in Article 17, while the objective of Article 63-A was to prevent defection.
Reacting to the development, Pakistan Tehreek-e-Insaf (PTI) leader Fawad Chaudhry said that Prime Minister Shehbaz Sharif and Punjab Chief Minister Hamza Shehbaz should resign after today's verdict.
"Both the federal and provincial governments are gone," Fawad said, urging President Dr Arif Alvi to dissolve all the assemblies.
Earlier, a five-member bench headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail completed proceedings of the case.
Ahead of its ouster, the PTI government had filed a presidential reference, which sought the top court's opinion on Article 63-A of the Constitution.
In March, the SC formed a larger bench to hear the presidential reference, which deals with the "legal status of the vote of party members when they are clearly involved in horse-trading and change their loyalties in exchange for money."
The reference had asked the top court if a member who "engages in constitutionally prohibited and morally reprehensible act of defection" could claim the right to have his vote counted and given equal weightage or if there was a constitutional restriction to exclude such "tainted" votes.
The reference had also asked the court to elaborate whether a parliamentarian, who had been declared to have committed defection, would be disqualified for life.
Earlier, during the course of the hearing, Chief Justice Umar Ata Bandial said: “For the progress of the country, a stable government is needed,” adding that “the [game of] musical chairs that has been taking place since the 1970s must end.
Article 63-A
According to Article 63 (A) of the Constitution, a parliamentarian can be disqualified on grounds of defection if he 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 the prime minister or chief minister; or a vote of confidence or a vote of no-confidence; or a money bill or a Constitution (amendment) bill”.
The Article says that the party head has to declare in writing that the MNA concerned has defected but before making the declaration, the party head will provide such member with an opportunity to show cause as to why such declaration may not be made against him.
After giving the member a chance to explain their reasons, the party head will forward the declaration to the speaker, who will forward it to the chief election commissioner (CEC).
The CEC will then have 30 days to confirm the declaration. If confirmed by the CEC, the member “shall cease to be a member of the House and his seat shall become vacant”.
Votes of dissident lawmakers will not be counted, SC announces verdict on presidential reference
- Top court says Article 63-A cannot be interpreted alone, asks Parliament to legislate on the issue of disqualification
17 May, 2022
The Supreme Court (SC) on Tuesday announced that parliamentarians cannot vote against their party policy, adding that the votes of dissident lawmakers will not be counted, Aaj News reported.
The court, issuing its verdict on the presidential reference that sought its interpretation of Article 63-A of the Constitution, which pertains to the disqualification of lawmakers over defection, said that the "article concerned cannot be interpreted alone."
The verdict by the top court was a 3-2 split decision, with a majority of the judges not allowing lawmakers to vote against the party line in four instances outlined under Article 63-A. These four instances are the election of a prime minister and chief minister; a vote of confidence or no-confidence; a Constitution amendment bill; and a money bill.
The court further announced that the parliament should legislate to decide on the issue of disqualification of dissident lawmakers.
The verdict noted that defection could "derail parliamentary democracy and destabilise political parties".
The top court also said that the rights of political parties had been underlined in Article 17, while the objective of Article 63-A was to prevent defection.
Reacting to the development, Pakistan Tehreek-e-Insaf (PTI) leader Fawad Chaudhry said that Prime Minister Shehbaz Sharif and Punjab Chief Minister Hamza Shehbaz should resign after today's verdict.
"Both the federal and provincial governments are gone," Fawad said, urging President Dr Arif Alvi to dissolve all the assemblies.
Earlier, a five-member bench headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail completed proceedings of the case.
Ahead of its ouster, the PTI government had filed a presidential reference, which sought the top court's opinion on Article 63-A of the Constitution.
In March, the SC formed a larger bench to hear the presidential reference, which deals with the "legal status of the vote of party members when they are clearly involved in horse-trading and change their loyalties in exchange for money."
The reference had asked the top court if a member who "engages in constitutionally prohibited and morally reprehensible act of defection" could claim the right to have his vote counted and given equal weightage or if there was a constitutional restriction to exclude such "tainted" votes.
The reference had also asked the court to elaborate whether a parliamentarian, who had been declared to have committed defection, would be disqualified for life.
Earlier, during the course of the hearing, Chief Justice Umar Ata Bandial said: “For the progress of the country, a stable government is needed,” adding that “the [game of] musical chairs that has been taking place since the 1970s must end.
Article 63-A
According to Article 63 (A) of the Constitution, a parliamentarian can be disqualified on grounds of defection if he 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 the prime minister or chief minister; or a vote of confidence or a vote of no-confidence; or a money bill or a Constitution (amendment) bill”.
The Article says that the party head has to declare in writing that the MNA concerned has defected but before making the declaration, the party head will provide such member with an opportunity to show cause as to why such declaration may not be made against him.
After giving the member a chance to explain their reasons, the party head will forward the declaration to the speaker, who will forward it to the chief election commissioner (CEC).
The CEC will then have 30 days to confirm the declaration. If confirmed by the CEC, the member “shall cease to be a member of the House and his seat shall become vacant”.
ghazi52
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May 18, 2022
THE judgement is monumental and will significantly influence Pakistani politics for years to come. After a nearly two-month wait, the Supreme Court has dilated on Article 63A of the Constitution to provide its opinion on how the votes of legislators who are deemed to have acted against their party’s directives should be treated.
Through a 3-2 decision, the court has held that any legislator who defies their party’s voting instructions on the four instances highlighted in Article 63A ought not to have their vote counted at all.
This is a significant departure from a widely held view that Article 63A was quite comprehensive in detailing what qualifies as defection and how defectors should be dealt with procedurally. The dissenting judges took the same view, saying they felt any additional reading into Article 63A would be akin to rewriting the Constitution. The majority, on the other hand, held that Article 63A cannot be read in isolation from the rest of the Constitution, especially not without considering the rights of political parties under Article 17.
The court, therefore, issued this order to act as a bulwark against “unconstitutional and unlawful assaults, encroachments and erosions” on the rights of political parties. The court has reasoned that since defection undermines the rights of political parties, any dissenting vote in the four instances detailed in 63A should not be allowed as the rights of an individual cannot be allowed to prevail over the rights of the party. On the matter of whether a defection may earn lifetime disqualification, the court has left it to parliament with a recommendation that it legislates a punishment that is sufficiently strong.
The court’s opinion has significant repercussions for the future as well as the present. In any future voting on the four specific instances highlighted in Article 63A, the order hopes to take away any temptation to indulge in the sale and purchase of votes. It also hopes to give political parties a greater sense of security. However, the same ruling will also prevent legislators from casting their votes according to their conscience, and it is not clear whether the court has taken this factor into account. All over the world, legislators vote against their own parties without hesitation if this is what their principles demand. Pakistan should be no different.
More immediately, however, the ruling turns attention to the role PTI defectors have played in recent assembly elections. The ruling has no immediate bearing on the federal government as dissenting PTI MNAs never actually voted against their party in the vote of no-confidence against Imran Khan. However, Punjab Chief Minister Hamza Shehbaz only secured victory in the province thanks to the support of the Jehangir Tareen and Aleem Khan groups in the PTI, and this order opens the door for legal challenges to be launched against the legitimacy of that victory.
Published in Dawn, May 18th, 2022
SC on defections
EditorialMay 18, 2022
THE judgement is monumental and will significantly influence Pakistani politics for years to come. After a nearly two-month wait, the Supreme Court has dilated on Article 63A of the Constitution to provide its opinion on how the votes of legislators who are deemed to have acted against their party’s directives should be treated.
Through a 3-2 decision, the court has held that any legislator who defies their party’s voting instructions on the four instances highlighted in Article 63A ought not to have their vote counted at all.
This is a significant departure from a widely held view that Article 63A was quite comprehensive in detailing what qualifies as defection and how defectors should be dealt with procedurally. The dissenting judges took the same view, saying they felt any additional reading into Article 63A would be akin to rewriting the Constitution. The majority, on the other hand, held that Article 63A cannot be read in isolation from the rest of the Constitution, especially not without considering the rights of political parties under Article 17.
The court, therefore, issued this order to act as a bulwark against “unconstitutional and unlawful assaults, encroachments and erosions” on the rights of political parties. The court has reasoned that since defection undermines the rights of political parties, any dissenting vote in the four instances detailed in 63A should not be allowed as the rights of an individual cannot be allowed to prevail over the rights of the party. On the matter of whether a defection may earn lifetime disqualification, the court has left it to parliament with a recommendation that it legislates a punishment that is sufficiently strong.
The court’s opinion has significant repercussions for the future as well as the present. In any future voting on the four specific instances highlighted in Article 63A, the order hopes to take away any temptation to indulge in the sale and purchase of votes. It also hopes to give political parties a greater sense of security. However, the same ruling will also prevent legislators from casting their votes according to their conscience, and it is not clear whether the court has taken this factor into account. All over the world, legislators vote against their own parties without hesitation if this is what their principles demand. Pakistan should be no different.
More immediately, however, the ruling turns attention to the role PTI defectors have played in recent assembly elections. The ruling has no immediate bearing on the federal government as dissenting PTI MNAs never actually voted against their party in the vote of no-confidence against Imran Khan. However, Punjab Chief Minister Hamza Shehbaz only secured victory in the province thanks to the support of the Jehangir Tareen and Aleem Khan groups in the PTI, and this order opens the door for legal challenges to be launched against the legitimacy of that victory.
Published in Dawn, May 18th, 2022
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