The Supreme Court on Wednesday resumed hearing on a petition filed against the apex court’s previous ruling on Article 63(A), also known as the defection clause.
A five-member bench led by Chief Justice Qazi Faez Isa is hearing the review plea filed by the Supreme Court Bar Association’s (SCBA).
The bench also includes Justice Jamal Khan Mandokhail, Justice Mazhar Alam Khan Miankhel and Justice Naeem Akhtar Afghan
The lawyer’s body had moved the apex court against its May 2022 verdict wherein it declared that the votes of dissident members of Parliament (MPs), cast against their parliamentary party’s directives, cannot be counted.
During yesterday’s hearing, the federal government and the Pakistan Peoples Party (PPP) announced to back the SCBA’s review plea with the Pakistan Tehreek-e-Insaf (PTI) expressing its opposition to the petition.
Appearing before the court, SCBA President Shahzad Shaukat termed the 2022 order as an attempt to rewrite the Constitution.
Whereas the additional attorney general, while responding to a question by the CJP, apprised the court that the apex court’s judgement on the said issue didn’t provision immediate disqualification of a lawmaker if he voted against party lines
Defection clause saga
The issue at hand owes its origins to a reference filed by the Pakistan Tehreek-e-Insaf (PTI) government in the SC back in 2022 seeking the apex court’s opinion on Article 63(A) to curbing the menace of defections, purification of the electoral process, and democratic accountability.
The court, via a 3-2 judgement, had then announced the verdict against defections and barred lawmakers from going against their party’s policy lines when voting in the parliament.
Three judges — then-CJP Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Munib had voted in favour whereas Justice Mandokhail and Justice Mazhar disagreed with the verdict.
The SCBA filed a plea moving the apex court to take back its opinion on the verdict’s paragraph about not counting the votes of dissidents by reviewing the interpretation made on May 17, 2022. It maintained that the dissidents should only be de-seated but their votes are supposed to be counted as per the Constitution of Pakistan.
“The apex court’s opinion about not counting the dissident’s votes is against the Constitution and equal to interference in it,” the SCBA stated in the plea.
Significance of Article 63(A)?
Article 63(A) of the Constitution of Pakistan deals with the defection of parliamentarians.
According to the article, a lawmaker can be disqualified on the grounds of defection if they vote or abstain from voting in the House contrary to any direction issued by the parliamentary party to which they belong.
However, this is restricted to three instances where they have to follow the party’s directions:
- Election of the prime minister or chief minister;
- Vote of confidence or a vote of no-confidence;
- Money bill or a Constitution (amendment) bill.
Per the article, the head of the party is required to present a written declaration that the MNA concerned has defected.
However, prior to presenting the declaration, the head of the party will have to give the MNA concerned a chance to explain the reasons for defection.
Following that, the party chief will then forward the written declaration to the speaker, who would, in turn, hand it over to the chief election commissioner (CEC).
The CEC will have 30 days at their disposal to confirm the declaration. Once confirmed, the MNA concerned will no longer be a member of the House and their “seat shall become vacant”.
