Interpreting Article 63A: impact on our political system – 25 May 2022

Constitution being a law organic in nature continues to evolve according to the dictates of times

In a landmark judgment, the Supreme Court of Pakistan while interpreting Article 63A created history in the constitutional development of Pakistan. The decision will have far-reaching effect on the evolution of the political system towards elimination of politics of opportunism sine quo non for the smooth functioning of democracy.

Article 63A was inserted into the Constitution with an intention of the authors to prevent horse trading thorough the exercise of party discipline.

Article 63A places an embargo on a member of National Assembly or Provincial Assembly to go against the party and can be declared disqualified, if he or she being a member of a Parliamentary Party composed of a single political party in a House resigns from membership of his political party or joins another Parliamentary Party. Most significantly, in case of a vote of no-confidence, votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, in relations to — (i) election of the Prime Minister or the Chief Minister; or (ii) a vote of confidence or a vote of no-confidence; or (iii) a Money Bill or a Constitution (Amendment) Bill; he may be declared in writing by the Party Head to have defected from the political party, and the Head of the Parliamentary Party may forward a copy of the declaration to the Presiding Officer. However, under proviso before making the declaration, the Party Head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him.

Upon receipt of the declaration, the Presiding Officer of the House is under an obligation to refer, within two days, the declaration to the Chief Election Commissioner who is then required to lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner.

In case the Election Commission confirms the declaration, the member shall cease to be a member of the House and his seat shall become vacant. But, after the decision, any party aggrieved by the decision of the Election Commission may, within thirty days, prefer an appeal to the Supreme Court which shall decide the matter within ninety days from the date of the filing of the appeal.

The issue of floor crossing cropped during the vote of no-confidence against Prime Minister Imran Khan amidst anticipated fear of defection from the ruling party. The reference was filed by the President of Pakistan asking the question: Can defected parliamentarians be allowed to vote? Will defected MPs’ vote be given equal weightage? Can defected MPs be disqualified for life? Other measures that can be taken to curb vote-buying?

Reiterating the spirit of Article 63A of the Constitution, Supreme Court held that the dissident members of a parliamentary party cannot cast votes against their party’s directives. While deliberating on the issue the court also interpreted that Article 63A of the Constitution could not be interpreted alone. Therefore, this was taken in juxtaposition with Article 17 of the Constitution providing right to every citizen to form associations or unions, and the right to form or be a member of a political party. Elaborating this right, the Supreme Court declared: “The pith and substance of Article 63A is to enforce the fundamental right of political parties under Article 17 that, in particular in the legislative arena, their cohesion be respected, and protected from unconstitutional and unlawful assaults, encroachments and erosions. It must therefore be interpreted and applied in a broad manner, consistent with fundamental rights of the collectivity (i.e. the political party) and an individual member thereof it is the former that must prevail. The first question is answered accordingly.”

In response to the first and second questions raised in the reference, the top court’s majority judgment said the votes of the defected parliamentarians would not be counted.

In response to the third question regarding the disqualification of members, the top court rejected the PTI’s plea, saving the lawmakers from permanently being barred from the Parliament. This was left to the parliament to legislate, if need be.

In this judgment emphasising the importance of political parties, the apex court considered it to be imperative for democracy, just as fundamental rights are to be protected.

The immediate impact of the judgment has been the de-seating of the 25 members of the Punjab Assembly putting the office of Hamza Shehbaz as Chief Minister in limbo by declaring that “the casting of votes by the respondent in favour of opposition candidate is a serious issue and worst form of betraying the electorate and party’s policy.”

Looking from the perspective of a firmly rooted democracy, political parties are the nucleus around which other institutions revolve, providing strength and vigour to the political system. Political parties, being at centre stage of a political system, represent the hopes and aspirations of the people. Besides in a democracy sovereignty belongs to the people solidified in the political parties.

These political parties being repository of the will of the people, not only provides blue prints for governance but also threads diverse sections of population into a single whole called nationhood. Thus political parties in national parties are the steel frame of the foundation of a modern state. In the context of Pakistan, through this medium, the people from Karachi to Khyber have been bonded together by agreeing to the progmrames of the political parties in pursuit of political power.

Unfortunately, our country remained riddled with malaise of floor crossing, weakening political parties and undermining democracy in the process. This opportunism also encouraged horse trading, adversely affecting the sanctity of the ballot. This process of abandoning political parties, reflecting politics of opportunism has also been a big obstacle in establishing genuine democracy.

No doubt, Constitution being a law organic in nature therefore continues to evolve according to the dictates of times. The Supreme Court of Pakistan has interpreted those articles by strengthening the institutions and adding morality to politics, thus dispelling the impression: end justifies the means.

This can now safely be said that the judgment will go a long way in stabilising democracy by preventing politics of opportunism in the country.

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