Defection and the coming crisis

Among the many permutations that are possible in Pakistan’s unprecedented judicio-political environment, one issue that is certainly going to raise its head is that concerning the fate of dissident PTI members—in the National and, in particular, the Provincial Assembly of Punjab. To this end, all eyes are fixed on the Election Commission of Pakistan, and the awaited interpretation of Article 63A of the Constitution by the honourable Supreme Court of Pakistan.
Let’s reiterate a few facts, in order to contextualise the constitutional issue at hand. PTI’s government in the National Assembly, was removed through a vote of no-confidence against the former Prime Minister of Pakistan, Imran Khan. In the lead up to this vote of no-confidence, several members of the National Assembly, belonging to PTI, expressed their dissatisfaction with Imran Khan’s leadership, and publicly declared their intention to break ranks with the party. Based on the public stance of these dissident members (allegedly), several coalition parties of PTI’s former government switched their loyalties and voted against Imran Khan in the vote of no-confidence. By virtue of a breakdown in the coalition, the vote of no-confidence against Imran Khan, in the National Assembly, passed with a majority of 174 votes, without the need of any dissident PTI members to be counted.
In the aftermath of Imran Khan’s removal from office, a similar vote was called against PTI’s Chief Minister in Punjab. Importantly, unlike the National Assembly, in Punjab, 26 dissident members of PTI (including those belonging to the ‘Jehangir Tareen group’) voted against party line, in favour of Hamza Shehbaz, and thus violated express party directions.
This ‘mischief’, of defecting from a political party, during a vote against the leader of the House, is specifically catered for in Article 63A of the Constitution.
Introduced through the 18th Constitutional Amendment, as an antidote to the ‘Changa-Manga’ politics of the past, this constitutional provision, titled “Disqualification on grounds of defection, etc.”, specifically stipulates, inter alia, that if a person “votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs”, in regards to: (i) election of the Prime Minister or Chief Minister; (ii) vote of confidence or no confidence; and (iii) Money Bill or Constitutional Amendment, such member may be “declared in writing by the Party Head to have defected from the political party”, and consequently de-seated. For this purpose, “Party Head” forwards a declaration of defection to the Presiding Officer/Speaker, and to the Chief Election Commissioner. Thereafter, “within two days”, such declaration is referred to the Election Commission for “its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner”.
Importantly, per Article 63A(4) of the Constitution, “where the Election Commission confirms the declaration”, such member ceases “to be a member of the House”, and his/her seat becomes “vacant”.
The language and intent of Article 63A, as apparent, does not leave much room for manoeuvrability. Once a member of the Assembly defects from party line, in any of the (three) items stipulated in the constitutional provision, a disqualification and de-seating of such a member is virtual certainty. The only outstanding legal question, in such circumstances, is whether the disqualification/de-seating, under Article 63A, is temporary in nature, or permanent (for life), in light of Supreme Court’s jurisprudence concerning Article 62(1)(f) of the Constitution. And for this purpose, a Presidential reference, under Article 186 of the Constitution, is already pending before the honourable Supreme Court for its “opinion on the question”.
The honourable Supreme Court of Pakistan, despite insistence and criticism from Imran Khan and his party, is yet to decide this reference. At the time that this reference was filed, in March of this year, the issue of dissident members was just academic in nature. The dissident PTI members had not yet ‘defected’ from the party line, because the vote of no confidence had not been tabled at the time. Moreover, even when the vote of no confidence was passed in the National Assembly, it was done so without active participation of the dissident members of the PTI, and thus an argument was made that no issue concerning Article 63A is attracted because no one has voted against the party lines in the National Assembly.
But all that changed during the recent election of Hamza Shehbaz as the Chief Minister Punjab. In the said election, despite express directions to the contrary, 26 MPA of PTI’s and its coalition, in an open ballot, casted their vote in favour of Hamza Shehbaz—thus attracting the mischief of Article 63A of the Constitution.
Immediately thereafter, PTI issued show-cause notices to such members, and after completing the Constitutionally stipulated process, forwarded a declaration for their disqualification, through the Speaker, to the Election Commission. Since then, (a partisan) election commission has not made any progress in the matter. And as a result, Mr Hamza Shehbaz, continues to serve as the Chief Minister of Punjab, having gotten 197 votes out of 371, with the help of 26 PTI defectors.
As the situation stands, a number of outcomes can result hereon. One: the Election Commission can continue to function as a sub-office of PML(N), and declare (on some boondoggle pretext) that these members cannot be disqualified under Article 63A. In such a case, PTI will have the option to appeal the decision of the Election Commission, before the Supreme Court, and the honourable Court may (as it did in the Yousaf Raza Gillani case) direct the Election Commission to de-seat the concerned members. The question concerning how long this disqualification lasts, will still remain tied to the decision of the pending Presidential reference.
Two: upon the de-seating/disqualification of the 26 dissident members of PTI from the Punjab Assembly, Hamza Shehbaz will be left with the support of (197—26) 181 members, which is not a majority of the total seats of the Punjab Assembly (371). In such a situation, the Governor of Punjab (in case s/he’s from the PTI/coalition), may call upon the Chief Minister to seek a vote of confidence, under Article 130(7) of the Constitution. And since neither side of the aisle, in the absence of the 26 disqualified members, will be able to get the requisite majority in the house (187 votes), the Governor may dissolve the Provincial Assembly of Punjab. Such eventuality would most likely trigger a chain reaction, resulting in the dissolution of the KP Assembly as well, and thus force the country into General Election.
Three: in case the Governor (aligned with PML(N)) does not require the Chief Minister of Punjab to take a vote of confidence, the PTI coalition in Punjab will be forced to move a ‘vote of no confidence’ against the incumbent Chief Minister, under Article 136 of the Constitution, through a resolution of at least 20 percent of the members of the Provincial Assembly. However, in the absence of the 26 defected/de-seated members, the vote of no confidence will not succeed, because the PTI coalition in Punjab will also not be able get the requisite 187 votes. And Punjab, consequently, will be governed through a Chief Minister who neither commands the majority in the House, nor can be removed from office through a vote of no confidence.
Pakistan has been in the throes of constitutional and political crises over the past several months. These crises have brought disrepute to our democracy, disenchantment to our allies, defamation to our institutions, and distrust in our system of justice. This caustic environment, even though sheltered from mainstream media, will remain an issue of ridicule and contempt across the social and digital media spectrum. As such, our institutions, and our political diaspora, must find a way to stem the rot in our democracy. In this regard, very little can be expected from our polity, which is driven primarily by a desire to protect personal fiefdoms. Instead our institutions—led primarily by the superior Courts of Pakistan—must find a way to bring a sense of sanity to our Constitutional enterprise. Failing which, extra Constitutional forces may be compelled to intervene, thus undermining the already brittle project of democracy in our land.

Saad Rasool

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be contacted at Follow him on Twitter

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