The nail-biting contest to elect the Punjab chief minister ended dramatically with PML-N's Hamza Shehbaz retaining the coveted post and PML-Q's PTI-backed candidate Pervez Elahi braving a shock defeat following the last-minute rejection of votes cast by his party members in his favour.
The ruling of Deputy Speaker Dost Muhammad Mazari has triggered an intense debate on whether his decision in the light of PML-Q head Chaudhry Shujaat Hussain's letter — asking his MPAs to vote for Hamza in a volte-face at the eleventh hour — was legally valid, especially in light of the Supreme Court's interpretation of Article 63-A.
Under the top court's observation of the Constitution's much-debated Article 63-A, it had said the votes of defecting lawmakers will not be counted. The verdict by the larger bench of the apex court was a 3-2 split decision, with a majority of the judges not allowing lawmakers to vote against party line.
In its interpretation, the court had written:
If, at all, there is any conflict between the fundamental rights of the collectivity (i.e., the political party) and an individual member thereof it is the former that must prevail.
It is our view that the vote of any member (including a deemed member) of a Parliamentary Party in a House that is cast contrary to any direction issued by the latter in terms of para (b) of clause (1) of Article 63-A cannot be counted and must be disregarded, and this is so regardless of whether the Party Head, subsequent to such vote, proceeds to take, or refrains from taking, action that would result in a declaration of defection.
In case the Election Commission of Pakistan confirms the declaration sent by a Party Head against a member, he/she shall cease to be a Member of the House.
According to Article 63-A (1) 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 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".
Here's what legal eagles had to say after the Punjab CM election:
'Deputy speaker misconstrued court orders'
Speaking to Dawn.com, Barrister Asad Rahim said he differed from Mazari's observation.
"The text of Article 63-A is clear and it says you cast vote as per directions of the parliamentary party. The Constitution clarifies it and the letter of Chaudhry Shujaat has no legal and constitutional value."
He said the deputy speaker should not have rejected the PML-Q votes.
Rahim said the ruling of SC was totally misconstrued by the deputy speaker.
He said linking the rejection of votes with Shujaat's letter or his parliamentary status had no legal weight. He stated it was an unfortunate day that a "clear law has been distorted to take people back to April 10 situation" — when the no-confidence motion was approved against the then prime minister Imran Khan.
Mazari’s ruling is entirely illegal, and as bereft of the law as Qasim Suri’s ruling was in April, he added. "The text of Article 63A expressly mandates voting per the direction of the parliamentary party and not the party head."
'Ruling is illegal'
Abdul Moiz Jaferii, talking to Dawn.com, said Article 63-A referred to the parliamentary party and its directions, and then it went on to describe the process and procedure of going against your party by speaking of the role of the "party head".
Jaferii said there was enough room to interpret that Shujaat had been inserted into the process. "It is prima facie illegitimate and it is an illegal ruling." He stated that the Supreme Court clearly had a political party head in mind when it passed the short order, and not the parliamentary party. The order repeatedly refers to the political party being the bedrock of the democratic process, and clearly the parliamentary party is simply a procedural tool in this process.
He believed that the bigger issue was that the holder of a single-seat — which was the deputy speaker — "can hold hostage the majority opinion of the House."
He stated that the members had been stopped from expressing their constitutional right of dissent as enshrined in 63-A albeit at the incurrence of the penalty of deseating.
'SC interpretations causing more instability than stability'
Speaking to Dawn.com, lawyer Basil Nabi Malik said Article 63-A of the Constitution talked about disqualification in the event that a member of a parliamentary party voted against or abstained from voting in accordance with the directions of the parliamentary party.
"The Supreme Court short order on the presidential reference holds that the vote of a member of a parliamentary party that is cast contrary to any direction issued by such parliamentary party cannot be counted."
He said the short order also covered the essence of democracy and how a robust and purposive interpretation was required.
"In keeping with this, I find it hard to believe that the Supreme Court would uphold an interpretation which effectively established party dictatorship. In fact, it appears that the intent behind the short order was to champion the will of the collective over the dictatorship of an individual," he said.
"This may be the direction in which the Supreme Court may want to go now. There are other Supreme Court decisions which have indicated and even held that the party head is the leader of the parliamentary party. Interestingly, amongst others, this was observed by the top court in the case that effectively stripped Nawaz Sharif of his right to be the party head of his own party on account of being disqualified from being a member of Parliament."
'Party head cannot issue directions under Article 63-A'
Lawyer Moiz Baig told Dawn.com "the legal position prior to the Supreme Court's decision in the presidential reference No. 1 of 2022 was clear insofar as a parliamentarian could deviate from his party position but such defection came at the peril of being disqualified as the SC decision regarding the functions of the parliament leaves the legal position more convoluted than before."
"The court observation clearly said when a parliamentarian deviated from the position espoused by his or her parliamentary party and cast his or her vote in a manner inconsistent with the directions issued by the parliamentary party, such votes ought to be disregarded.
"Moreover, the party head may thereafter declare such parliamentarian to have defected and seek such parliamentarian's disqualification."
He was of the view that the directions envisaged under Article 63-A of the Constitution could only be issued by the parliamentary party and not a party head whose role, especially "where the party head is not a member of the parliamentary party, may merely be that of a post office".
Senior lawyer Barrister Aitzaz Ahsan was also categoric in his observation that the decision by the deputy speaker was not "right".
"If you read Article 63-A, it has two segments with one part describing parliamentary dominance and the second is about the authority of a party head," he said while talking to ARY News.
Ahsan said that a party head could take a better decision as he was an individual who travels all over the world, but "the parliamentary party are the few people who take part in parliament debates and have an eagle eye on such matters. They are the best judge rather than the party head."
He observed that the parliamentary party had the authority in the first place to determine either to vote in favour or against, then the party head comes next to decide if any member should be prosecuted.
Matter to likely end in court, says former AGP
Talking to ARY News prior to the counting of the votes, former attorney general of Pakistan and legal expert Anwar Mansoor Khan explained the current situation in the context of Shujaat's letter.
He said that if the parliamentary party had already given a direction then "the same parliamentary leader will be the person to issue directions within the House, and hence, there will be no issue of defection".
However, he added that the parliamentary leader could only take notice of defection if the party head conveyed the same to him.
Mansoor said the word used in the Constitution was in the context of the parliamentary party and not the party leader, which meant "the party as a whole". "This is crucial and the matter will likely land in the court".
'Party head is supreme'
Anchorperson Muneeb Farooq told Geo News that there were instances where several party heads were not a part of an assembly but they had the right to issue a show-cause notice or expel member.
In contrast, a parliamentary leader cannot direct a "party line" to any member and the decision in this regard has to be made by the party head who is not bound to be a part of the assembly, Farooq explained.
'Minority view in SC judgement carries more weight'
Sharing his take on the CM election, Supreme Court Bar Association President Ahsan Bhoon told Geo News that the minority view in the Article 63-A observation was more accurate than the majority view of three other judges.
"Article 63-A provides that if member votes against directions of party head, his vote will be counted but thereafter the party can move to de-seat that member, but unfortunately the honourable Supreme Court gave a reference of party head which is not in the Constitution."
He said his review of Article 63-A as president of SCBA was sub-judice and the court had to decide on it.