Constitutional Discord

Momin Ali Khan

By a recent short order of the Supreme Court of Pakistan dated 17th May 2022, it was held that the vote of any member of a parliamentary party in a house of parliament that is cast contrary to any direction of such member’s parliamentary party in terms of para (b) of clause (1) of Article 63A cannot be counted and must be disregarded.

In a parallel development, through an order dated 20th May 2022, the Election Commission of Pakistan confirmed the declarations of defections whereby dissenting members of the parliamentary party of the Pakistan Tehreek-e-Insaf ceased to be members of the Punjab Assembly having cast their votes in favour of Hamza Shahbaz in the election of the Chief Minister of the Punjab i.e. contrary to the directions of the parliamentary party.

The two orders passed from buildings opposite one another on Islamabad’s Constitution Avenue were the culmination of a legal battle which have given birth to an intriguing yet avoidable political battle.

The members whose swaying votes resulted in the election of Hamza Shahbaz as the Chief Minister are no longer members of the assembly albeit the individual for whom the dissenting members had voted for in defiance of the directions of their political party continues in office. Had the election of the Chief Minister of the Punjab been held consequent to the Supreme Court’s short order, votes cast contrary to party directions would have been disregarded and, resultantly, the incumbent Chief Minister’s dream to be the Chief Minister would still have been that – a dream!

Notwithstanding the widely discussed point of the judges of the Supreme Court having rewritten the Constitution through the short order, our democratic dispensation (or lack thereof) would have been better served with a purposive implementation, either through the order itself or, in a utopian world, the constitution, the silence of which in such instances has, unfortunately, led to, least of all, a constitutional discord if not an impasse.

The dispensation’s current conundrum, to use legal parlance, may well be a case of first impression. Notwithstanding, it has created a vacuum of governance besides also distorting the trust of a sizeable section of society on the variance between the theory and the practicality of the constitution based on the following thoughts:

  • Without having had the benefit of reading the relief sought by the Pakistan Tehreek-e- Insaf through their Constitution Petition before the august Supreme Court, would an active approach from the Court enabled the existing discord to be avoided? Should a political party (in this case the PTI) not be aggrieved that had the Presidential Reference and/or the Constitution Petition been adjudicated prior to the election of the Chief Minister of the Punjab, the outcome would have been different which would have changed the entire landscape of the ongoing political battle?
  • In some disputes before the Courts, interim orders are usually passed whereby a process is made conditional to the outcome of a petition before it. Was it within the contours of a Court’s powers to pass an order qualifying the election of the Chief Minister to the adjudication of the petitions before it?
  • Post the election, the process for the removal of the Chief Minister – whose election is now obviously tainted and in any future elections the votes which made him the Chief Minister would not even be counted – requires for a vote of no confidence to be tabled against him. Till such time, status quo prevails and even though an individual’s election would not stand if held today, he continues to hold office due to there being no active requirement for obtaining a vote of confidence.

Some of these intrusive gaps may well be addressed in the days to come but the cost of a void and uncertainty of governance has capitulated the country towards a turmoil. While terms like grand national dialogue, reconciliation and a reset of relationship between state organs have often been used in our country but perhaps the greatest necessity of these times is the modification of the social contract between the state and its subjects before we decay into an abyss of political morality, a trailer of which we witnessed in the use of unbridled force by the state last month.

As a post-script, another intriguing aspect of the Supreme Court’s order is that a vote contrary to the directions of a parliamentary party is not to be counted regardless of whether the Party Head proceeds to take or refrains from taking action that would result in a declaration of defection. Would the vote(s) cast by the Pakistan Muslim League – Q in favour of Shahbaz Sharif in the election of the Prime Minister be counted since, apparently, the majority of the Parliamentary Party chose not to vote for him even though any specific direction being issued by their parliamentary party remains shrouded in secrecy.

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63A
Disqualification on grounds of defection, etc.
(1) If a member of a Parliamentary Party composed of a single political party in a House-
(b) 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, and shall similarly forward a copy thereof to the member concerned:

Provided that 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.

Explanation: “Party Head” means any person, by whatever name called, declared as such by the Party.

Momin Ali Khan

Author: Momin Ali Khan

The writer is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and is currently practising in Islamabad.

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