The entire country is convulsed by what is happening in Punjab. The fall of the Punjab government is being seen as a sign of whether the federal government will not survive, but the demand for elections may now be limited to the National Assembly. Ch Pervez Elahi has not returned to the Punjab chief ministry after almost a decade and a half only to advise a dissolution.
The issue of the Punjab Assembly Deputy Speaker’s ruling refusing to count PML(Q) votes in favour of Ch Pervez Elahi was correct or not, has gone before the Supreme Court, which has to pick up the pieces of the confusion created by its own judgement in the presidential reference on Article 63A, the famous, or perhaps in famous, anti-defection clause.
On the face of it, the issue was quite simple.
Members of a parliamentary party are obliged to vote according to its directions on a limited matter of issues, one of them being a CM’s election. Does the decision of the party head constitute that direction? The Supreme Court had found, in the previous Punjab Assembly case, where Hamza Shahbaz was elected, that members voting against that direction would not have their votes counted. Thus 20 PTI floor-crossers were unseated, bye-elections held, and new PTI members elected.
Now the members had not been unseated because they had voted against the direction, but because the party head had made a reference against them to the Speaker who had duly sent the reference to the Election Commission, which then unseated them and held bye-elections. The Supreme Court also had ruled that no plea of not having been informed for whatever reason would be entertained, that none of the formalities of service would be observed.
The survival fate of the Punjab government and central governments might depend on the result of the case, but it shows that even the Supreme Court has not yet been able to draw out all the meaning inherent in Article 63A. It is almost a certainty that the next Parliament will amend it, so as to make it more convenient to operate.
The meeting of the parliamentarians chaired by party chief Imran Khan was considered sufficient intimation. The absence of various floor-crossers on various pleas was not intimated by the Supreme Court.
The PML(Q) parliamentary party also met, deciding to vote for Ch Pervez. Ch Shujaat did not attend this meeting. On the day of voting itself, he sent a letter to the Deputy Speaker. The freedom granted from service could have been a precedent for considering that letter sufficient information to the members.
A number of questions have been raised that the Supreme Court might find itself constrained to answer. The initial reaction of the legal community to the original decision in the presidential reference was that it was bad in law may have come true. The original reference perhaps should not have been sent, because the Supreme Court had to decide a matter which was relatively clear.
Now the questions it will have to answer are perhaps more philosophical than anything else. Who is a parliamentary party head? What is a parliamentary party? What happens when the parliamentary party and the party head differ?
The Supreme Court may have wished to favour the PTI. Indeed, that is what the PML(N) feared. Because the PTI seems to have won over the Supreme Court by attacking it, the PML(N) has started to do the same. Whatever else the PTI has done, it has made the previously sacrosanct subject to criticism. First it was the Army, then the judiciary and the Election Commission. The PML(N) has had problems with the Army, which it has subjected to strong criticism, though it has now stopped. It seems that it would go after the judiciary next if the decision on Punjab goes against it.
Going back to the Supreme Court, it finds itself once again examining the constitutionality of a parliamentary proceeding. Its path may have been smoothed by its previous decision, but the PTI supporters who had insisted on this ouster should now be ready to live by it. But once that is out of the way, the Supreme Court will have to determine who is the head of a parliamentary party. Can a non-member of that parliamentary party, like both Imran and Chj Shujaat, head it?
It makes sense that people elected as independents, and indeed who had defeated PTI candidates, should be unseated for voting against the PTI direction, because they had joined its parliamentary party after all.
Now that the parliamentary party has been recognised as a body separate from the head of the party, are we seeing some sort of prevention of one of the dangers predicted as flowing from the Supreme Court judgement in the presidential reference? Critics said that the Supreme Court verdict implied the dictatorship of the party head. That was not a particularly strong criticism, for just such a dictatorship already exists.
Party chiefs already can deny dissidents tickets, and thus presumably prevent their re-election. Now, it seems, they can choose to penalize rebels, or not. If they do not send a reference to the Speaker, dissenting members will not be unseated.
Now what happens where the party chief is not a member of any parliamentary party? For many years, indeed decades, the head of the MQM, was not a member of any parliamentary party. While toppling the dictatorship of party heads, are we now to see the fractionation of political parties into a maximum of six parliamentary parties?
There is the ancillary question of whether the Speaker is allowed to be a member of any parliamentary party. There is no law or rule against this, but though elected on a straight party vote, the Speaker is supposed to be neutral. However, a political role is possible for a Speaker who refrained from attending parliamentary party meetings. The precedent exists, in the Punjab Assembly itself, of Manzoor Wattoo, who as Speaker made it a point to stay away from parliamentary party meetings, but who parlayed his position into becoming Chief Minister in 1993.
Wattoo was the first, but there have been other examples of people who have held both posts, starting with Hanif Ramay and Ch Pervez himself in the Punjab, Abdul Quddus Bizenjo in Baluchistan, Muzaffar Hussain Shah in Sindh, are also examples, as are Yousaf Raza Gilani and Raja Pervez Ashraf. Clearly, the Speakership allows the holder to gather support for the prime or chief ministership. Indeed, the US Speaker of the House of Representatives is considered the leader of his or her party if it does not hold the Presidency.
Clearly, it is a powerful position.
One of the more interesting aspects of the whole affair, no matter what the final outcome, is how ex-President Asif Zardari once again proved his political mettle. There is no doubt that if he had not persuaded Ch Shujaat to send off the letter, the Hamza Shehbaz government would have fallen. Even now, his fate is up in the air, but if he had a fighting chance, it was because of Zardari’s moves. It should not be forgotten that Ch Shujaat is now more concerned about his legacy than anything else, and the refusal to support Ch Parvez could only be undertaken if he believed that this would serve that purpose.
It should also be clear that Zardari has not yet obtained the advantages he seeks from participating in the government, otherwise he would not have made the effort he did to stave off the collapse of the Hamza government, and of that at the Centre.
The survival fate of the Punjab government and central governments might depend on the result of the case, but it shows that even the Supreme Court has not yet been able to draw out all the meaning inherent in Article 63A. It is almost a certainty that the next Parliament will amend it, so as to make it more convenient to operate.
