SC explains what really poses a threat to the democratic system – Pakistan

ISLAMABAD: The Supreme Court has declared that defections are an attack on the integrity and cohesion of political parties, which constitutes a direct negation and denial of the rights set out in Article 17(2) of the Constitution.

According to the details, majority members of a five-judge bench announced their detailed judgment on Section 63A of the Constitution on Friday.

The bench, headed by Chief Justice Umar Ata Bandial, and composed of Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Muneeb Akhtar and Justice Jamal Khan Mandokhail with a majority of three to two on May 17, 2022 deemed that the vote of any member of a parliamentary party in a chamber which is rejected against any directive under paragraph (b) of clause (1) of section 63A cannot be counted and must be ignored.

Judge Mazhar Alam Khan Miankhel and Judge Jamal Khan Mandokhail, who disagreed, have already announced their detailed judgments.

The 95-page judgement, written by Judge Muneeb Akhtar, said there can be no “healthy” functioning of the parties and between them externally if defections are not thwarted and defeated. He argued that proscribed defector voting seeks to disrupt and materially and adversely alter the balance between political parties, which must necessarily be maintained if they are to compete and contest for political power in the manner contemplated by Article 17(2).

The judgment said that if the vote is disregarded, it is a huge deterrent and deterrent against even trying to induce, seek or organize the vote by challenge.

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The integrated approach that applies to a holistic understanding and application of Section 63A has a “chilling effect” on “buyers”, not just “sellers”.

The judgment says that the defaulting member, who cast the prohibited vote, is not ipso facto dismissed. This is because the article has placed a “gateway” along this path, which must leave it to the discretion of the party leader whether to proceed with the declaration of defection, which must precede impeachment.

On the role of the parliamentary party, the judgment says in constitutional terms, it is up to the parliamentary party itself to decide whether the directive should be issued. In practice of course, in most situations it may be that the position of the parliamentary party on the one hand and the controlling bodies of the political party, including the leader of the party, are aligned so that in most case, it may not even be necessary for the official issuance of an instruction.

This alignment may very well be considered, in practice, as the normal or ordinary situation and will suffice in most situations. But the constitutional position is as stated above.

A point which also needs to be addressed here is how the directive for the purposes of sub-paragraph (b), if a decision in this regard is taken by a parliamentary party, is to be made and communicated.

A decision under either of the subsections of subsection (1) of section 63A, whether taken by a parliamentary party to issue an instruction or by the leader of the party to proceed with the declaration of defection, cannot be considered as the simple exercise of a legal power quite in the same way as the attribution of a legal power to an authority or to a forum.

This is because a decision under Section 63A necessarily has a strong political element. In addition, particularly in connection with an election or a vote of confidence or censure, the political situation may be fluid and change from hour to hour. The decision to wield power may have to be made on a whim. Therefore, it may not be appropriate to dwell on the full panoply of formalities and procedural requirements that usually accompany the exercise of legal power.

Of course, to some extent clause (1) itself (in its proviso) sets out certain procedural requirements, and these are clearly intended to be mandatory in nature. However, certain precautions must be taken before insisting on other requirements or formalities such as, for example, the holding of a meeting of the parliamentary party before it takes the decision to issue an instruction or to insist on the fact that the internal procedures of the political party, if any, be rigorously followed.

The parliamentary formation of a political party in an Assembly is a well-defined instance, known to all. Since it is a body of parliamentarians, any decision under paragraph (b) must have the support of (at least) a simple majority of the parliamentary party. Decision-making and its communication can; therefore, be established in a credible manner that satisfies the relevant forum, and it would not be appropriate to establish a hard or fast rule in this regard. The totality of the circumstances in each actual situation must be kept in mind and given due consideration.

The tribunal; however, suggested that a copy of the directive, duly supported by the signatures of the majority of the parliamentary party, be deposited with the secretariat of the Assembly/House no later than the time it takes to vote on the question to which it relates.

While notice must also be given to Members of the Parliamentary Party of the Leadership by all possible means (including modern means of communication and messaging), the filing of the same in the terms just set forth shall be deemed notice to all.

In any event, it should at all times be regarded as the responsibility of a member of a parliamentary party to ensure, before voting or abstaining from voting on any matter covered by Rule 63A, paragraph 1, point b), if his party has (or has not) issued instructions in this respect.

As regards disqualification for life for defection, the judgment says since Article 63(1) (p) of the constitution confers the necessary jurisdiction on Parliament; he therefore left the matter to the legislator.

He noted that if a member who casts an outlawed vote is removed from office, they can seek re-election in the by-election. If he chooses to challenge the same, he can do so as an “independent” or even on the ticket of those who researched, engineered, hosted, caused and/or rewarded the defection. If he loses, the ensuing humiliation is also a kind of punishment, both for the defector and his puppeteers. However, the cyclical nature of the electoral process must also be taken into consideration.

The judgment stated that political power is not, and cannot be, an end in itself, but rather a means to a larger goal and objective, namely the ability of the political party to implement his program for the welfare of the people and the welfare of the country is also a given. But all this must be done, within the context of our system of parliamentary democracy, by a political party (or an alliance or a combination of such parties) which receives the mandate (i.e. the political power) from the people through contested elections by the said party.

He said the party is not a members-only space. It holds the rights provided for in Article 17(2) in its own name. The role the Constitution envisions for political parties, stated so forcefully and repeatedly in the various judgments of this Court, is that they be institutions and not mere associations. And such institutions must exist and last for decades, even generations.

Copyright Business Recorder, 2022