Article 63A, Defection and Dreadful Uncertainty

The election of Chief Minister, Punjab on 22nd July, 2022 has unleashed a new constitutional crisis. I make an attempt to describe the events leading up to this uncertainty from a legal perspective for a better understanding of the layperson whose exasperation through constant exposure to esoteric legal terms is merited.

The entire problem emerges from the different interpretations of Article 63A of the Constitution of Pakistan. It is indeed unfortunate because Article 63A is a relatively clear provision and a legal consensus over its interpretation is not too much to ask. Simply put, Article 63A says that if a member of a political party violates the directions of the ‘Parliamentary party’ (which is the first step: violation of Parliamentary party directions), then the ‘party head’ can file a reference of defection against that member (which is the second step). To a layperson, instincts may dictate that the ‘Parliamentary party’ and ‘party head’ are the same, but the law makes a distinction between them. Before indulging into a discussion over case-law, it should be noted that the mere fact that Article 63A has used two different terms implies that they have different connotations, hence, should not be used interchangeably. Article 63A in its current form is a product of the Eighteenth Amendment to the Constitution. Prior to the Eighteenth Amendment, the term “party head” was replaced by “Parliamentary party” under Article 63A(1)(b). The purpose was to take all decision-making power from one person and give it to a party as it would be more democratic and less arbitrary. For basic understanding, it would be suffice to say that Mr. Chaudhry Shujaat is the party head of PML(Q) but he is not the leader of the Parliamentary party in Punjab Assembly because he is not a Member of the Punjab Assembly (PLD 2015 SC 401, District Bar Rawalpindi vs Federation of Pakistan).

With regard to the current scenario, the problem is that on 20th May, 2022 the Election Commission of Pakistan (ECP) deseated 25 MPAs from Punjab Assembly on the grounds that they had voted in favour of Mr. Hamza Shahbaz of PML(N), contrary to the Pakistan-Tehreek-e-Insaf (PTI) party policy. My disagreement with this decision is based on the rationale that PTI did not follow the procedure provided under Article 63A. No directions had been issued by the ‘Parliamentary party’, instead the directions came from PTI’s party head, Mr. Imran Khan and they too were not in written form (to the best of my knowledge, although the record on this is not very clear).

As noted above, the terms in question have different consequences under the law. However, the ECP still decided to deseat 25 MPAs by adopting a more purposive approach towards the interpretation of Article 63A. During ECP proceedings, renowned lawyer and counsel for the respondent, Mr. Salman Akram Raja made the submission that since Article 63A had penal consequences, a literal and strict approach to interpretation should have been adopted in line with the dictum laid down by the Supreme Court in the Wukala Mahaz Case (PLD 1998 SC 1263). The ECP did not accept that submission and decided to deseat the MPAs. The deseated MPAs then filed appeals before the Supreme Court. While the appeals were still pending before the Supreme Court, the ECP announced by-elections for the seats vacant in the Punjab Assembly. A by-election was held on 17th July, 2022 and subsequently, a fresh election was held for Chief Minister, Punjab on 22nd July, 2022.

When a petition was filed before the Supreme Court on Saturday (23rd July, 2022) challenging the Deputy Speaker, Mr. Dost Mazari’s ruling regarding not counting the votes of PML(Q) members for the election of Chief Minister Punjab as per PML(Q)’s party head Mr. Chaudhry Shujaat Hussain’s directions through a letter, lawyers representing the Pakistan Democratic Movement (PDM, a coalition of political parties in Pakistan) asked the Supreme Court to hear the ECP appeals along with the petition since a common question of law was involved.

The Supreme Court has been faced with a difficult conundrum. In my view, the law under Article 63A is very clear. The directions have to be issued by the ‘Parliamentary party’ and not the ‘party head’. This view has also been upheld by the Supreme Court in a case reported as District Bar Rawalpindi vs Federation of Pakistan (PLD 2015 SC 401). In both instances under discussion, the directions had been issued by party heads i.e. Mr. Imran Khan in case of 25 deseated MPAs and Mr. Chaudhry Shujaat Hussain in case of 10 MPAs of PML(Q). However, since PTI’s dissident MPAs had been deseated by the ECP, following the same precedent the votes of the 10 MPAs of PML(Q) should not have been counted and they could have been deseated as well (at the discretion of their party head Mr. Chaudhry Shujaat Hussain).

The contrary decision of the ECP, in my view, is in violation of the express provisions of the Constitution and the law laid down by the Supreme Court in its previous judgments, thus, should not be upheld by the Supreme Court. The dilemma is that if the Supreme Court sets aside the decision of the ECP, it means that the 25 MPAs have been deseated illegally, the by-election has been wrongly conducted and the recent election of the Chief Minister conducted on 22nd July, 2022 has also been a byproduct of the ECP’s illegal decision. The question, then, is: what remedy do the 25 deseated MPAs have? Similarly, if the by-election is held to be a nullity in the eyes of law, what remedy do the newly elected MPAs have? What about the state’s expenditure in conducting the by-election? Would the by-election be declared a futile exercise?

There are two ways forward for the Supreme Court: to either uphold the decision of the ECP dated 20th May, 2022 or set it aside. Upholding the decision of the ECP would mean that the Supreme Court would have to depart from its earlier judgments on Article 63A, especially in District Bar Rawalpindi supra and the short judgment in Presidential Reference No.1 of 2022 reported as 2022 PLD 488 Supreme Court, wherein it stated that the votes of members cast contrary to the directions of the ‘Parliamentary party’ should not be counted (clearly implying that directions of the Parliamentary party would be binding on members).

On the other hand, the Supreme Court could decide to set aside the ECP’s decision and hold that by-elections had been validly held because at the time they were held, the ECP’s decision had been operative and a subsequent decision of the Supreme Court would not have retrospective effect of declaring them futile. However, it would have to be justified by the Supreme Court because ordinarily the decisions of the appellate court have a retrospective effect of undoing the consequences of a decision being set aside on appeal. In such a scenario, the logical conclusion would be that the votes of the 10 MPAs of PML(Q) would be counted and Mr. Pervez Elahi would be declared Chief Minister. In that case, the 10 MPAs (including Mr. Pervez Elahi) would not be exposed to defection because they would not have violated the ‘directions of the Parliamentary party’. What must be borne in mind is that we can never rule out the possibility of another surprise!

The views expressed in this article are those of the author and do not necessarily represent the views of or any other organization with which he might be associated.

Ali Hamza Malik

Author: Ali Hamza Malik

The writer is a lawyer based in Islamabad. He has pursued Bar-at-law from City, University of London and LL.B from University of London (International Programs). He is also part of the visiting faculty at Lord’s College International (an affiliate teaching centre of the University of London) where he teaches legal jurisprudence to third year law students.

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