Pakistan Muslim League - Nawaz chief Nawaz Sharif. — File Photo

ISLAMABAD: A legal controversy seems to be brewing over PML-N's plans to form a new government in the country's most populous province with the help of a breakaway faction of a major opposition party, the PML-Q. Almost all the legal experts talked to believed that with the formation of a 'unification bloc' by a majority breakaway group of the PML-Q, which would join hands with the ruling PML-N, the issue of floor-crossing required further elaboration both by the superior courts and the parliament.

The PML-Q has threatened to initiate legal action against its dissenting members in the Punjab assembly. Even federal Law Minister Babar Awan hinted at this on Friday when he said that such members could be disqualified.

However, some legal experts are of the opinion that such disqualification can only take place under the 18th Amendment of the Constitution.

This is where the issue becomes complex as the concept of vesting complete control over members of a parliamentary group in the National or a provincial assembly in the leader or head of a political party introduced through the 18th amendment would be applicable only after the next general election as enunciated under Article 63A(8).

For instance, Akram Sheikh, a senior lawyer with ties with the PML-N, pointed out that when the government had yet to take any step including establishing the Election Commission according to the spirit of the 18th amendment, it would be difficult to invoke the conditions set under Article 63A of the amendment.

The second problem is that the legal status of the provision involving disqualification of the elected members under Article 63A is unclear. This article, along with others, was challenged before the Supreme Court where the final adjudication on the 18th amendment is still awaited.

Though the apex court comprising 17 judges had spoken its mind through an interim order, it only dealt with the new mechanism of appointment of superior court judges. The verdict on the rest of the issues is still awaited.

This means that Article 63A under the 17th Amendment holds the field which empowers the head of the parliamentary party, and not the head of the political party, to decide the destiny of a breakaway group.

So once Shujaat Hussain is removed from the picture, the question that arises is, who exactly is the parliamentary head of the dissenters --- the head of the PML-Q in the Punjab assembly or the leader that the breakaway faction chooses for itself?

In other words, when the majority of the parliamentary members of a political party break away to form a different one, is this seen as defection or the formation of a new party?

“I believe the words 'parliamentary party' need serious interpretation because these have not been defined in the Constitution,” observed former law minister Iftikhar Gilani, saying that if the speaker of the provincial assembly recognised the 'forward bloc' then the breakaway group would turn into a new entity.

Advocate Akram Sheikh, who had vehemently opposed the introduction of the 18th amendment by the parliament before the Supreme Court, is one of those who felt that further interpretation of the method of floor-crossing was needed, especially after the latest political upheaval in the province.

The principle of the majority governing the floor-crossing is different from the reality in the Punjab because the group that had broken free from the original party cannot be called a bloc because its members are in a majority, he explained. Therefore, the defection clause is not applicable here, he said.

Justice Tariq Mehmood shared Mr Sheikh's views. In his opinion, Chief Minister Shahbaz Sharif seemed safe because the leader of the PML-Q, Chaudhry Shujaat Hussain, could not send any reference to the speaker of the assembly since the 18th amendment was not applicable.

He added that even if a disqualification reference was referred to the speaker by current PML-Q parliamentary leader Chaudhry Zaheeruddin, the speaker under the 17th amendment could keep these references with him instead of instantly forwarding these to the Chief Election Commissioner.

In a related development, a minority leader and former federal minister, Julius Salik, moved a petition before the Supreme Court on Saturday, seeking an interim order obligating the federal government not to announce any mid-term elections till the disposal of challenges to the 18th amendment still pending in the apex court in which Article 51(6e) was also challenged.

The article says the election for the reserved seats for non-Muslims will be held on the basis of proportionate representation.