Pak SC decides defecting lawmakers’ votes will not be counted

The Pakistan Supreme Court has declared that the votes of defecting lawmakers will not be counted, while deciding on the presidential reference seeking interpretation of Article 63-A of the Constitution involving the status of defecting lawmakers.

The verdict by the larger bench of the apex court was a 3-2 split decision, reported The Dawn on Tuesday.

The majority of the judges decided not to allow lawmakers to vote against the party line in four of the instances highlighted under Article 63-A, which include the election of a prime minister and chief minister, a Constitution amendment bill, a money bill as well as a vote of confidence or no-confidence.

Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar gave the majority verdict.

Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail, the dissenting judges, stated that giving an opinion on the presidential reference was the same as "rewriting the Constitution".

Article 63-A

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", according to Article 63-A.

The article also says that the party head is expected to declare, in written form, that the MNA concerned has defected but before making the declaration, the party head will "provide such member with an opportunity to show cause as to why such declaration may not be made against him". After having given the member a chance to explain their reasons, the party head will forward the declaration to the speaker, who will forward it to the chief election commissioner (CEC).

The CEC will have 30 days to confirm the declaration. Once confirmed by the CEC, the member "shall cease to be a member of the House and his seat shall become vacant".

Presidential reference

Prior to its ouster, the PTI government had previously filed for a presidential reference for the interpretation of Article 63-A which asked the court about the  "legal status of the vote of party members when they are clearly involved in horse-trading and change their loyalties in exchange for money".

In the reference, President Dr Arif Alvi also asked the apex court whether a member who "engages in constitutionally prohibited and morally reprehensible act of defection" could claim the right to have his vote counted and given equal weightage or if there was a constitutional restriction to exclude such "tainted" votes.

He also asked the court to clarify whether a parliamentarian, who had been declared to have committed defection, would be disqualified for life. Alvi cautioned that unless horse-trading is eliminated, "a truly democratic polity shall forever remain an unfilled distant dream and ambition".

"Owing to the weak interpretation of Article 63-A entailing no prolonged disqualification, such members first enrich themselves and then come back to remain available to the highest bidder in the next round perpetuating this cancer."

The reference had been filed at a time when the then-opposition claimed the support of several dissident PTI lawmakers ahead of voting on the no-confidence resolution against then-prime minister Imran Khan.

Eventually, the dissident lawmakers' votes were not needed in Imran's removal, as the opposition managed to stitch together support from government-allied political parties.

The role of dissident lawmakers was vital in the election of opposition candidate Hamza Shehbaz as the Punjab chief minister who bagged 197 votes, including from 24 PTI dissidents.