On July 25, the ruling coalition, the Pakistan Democratic Alliance (PDM), addressed a press conference in Islamabad and announced to boycott proceedings of the Supreme Court, which was hearing a case on the election for the seat of the Chief Minister Punjab.
The PDM wanted a full court to hear the case and not the three-member bench of the SC. The objection was that the bench comprising Chief Justice Umar Ata Bandial, Justice Munib Akhtar and Justice Ijaz ul Ahsan was prejudiced. Nevertheless, the boycott continued the next day when the bench not only turned down the written request of the PDM to constitute a full court but it also issued a verdict against the PDM’s case.
It is apparent that the May 17 verdict deliberately omitted (or evaded) the words the “head of the parliamentary party” to establish a direct relationship between a party head and a member in a House to benefit the PTI, whereas the July 26 verdict brought to life the omitted words to establish an indirect relationship between a party head and a member in a House through the “head of the parliamentary party” to the detriment of the PDM. Not legal nuance, this is sheer dishonesty.
It was the verdict of the SC issued on May 17 that made July 25 visit the country. On May 17, while hearing a petition filed by the Chairman Pakistan Tehreke Insaf (PTI), a five-member bench (including the aforementioned three judges) of the SC issued a verdict, which addressed the relationship between a triad: a party head, a parliamentary party and a parliamentary member who may defect from the party.
Para 1 of the verdict says: “The first question referred by the President [of Pakistan] relates to the proper approach to be taken to the interpretation and application of Article 63A of the Constitution. In our view, this provision cannot be read and applied in isolation and in a manner as though it is aloof from, or indifferent to, whatever else is provided in the Constitution. Nor can Article 63A be understood and applied from the vantage point of the member who has earned opprobrium and faces legal censure as a defector by reason of his having acted or voted (or abstained from voting) in a manner contrary to what is required of him under clause (1) thereof.” That is, this para sets the intent and direction of the verdict.
Para 2 of the verdict says: “It follows that Article 63A must be interpreted in a purposive and robust manner, which accords with its spirit and intent… The pith and substance of Article 63A is to enforce the fundamental right of political parties under Article 17 that, in particular in the legislative arena, their cohesion be respected, and protected from unconstitutional and unlawful assaults, encroachments and erosions. It must therefore be interpreted and applied in a broad manner, consistent with fundamental rights. It also follows that if at all there is any conflict between the fundamental rights of the collectivity (i.e., the political party) and an individual member thereof it is the former that must prevail. The first question is answered accordingly.” That is, in this para, the defection of a member of a parliamentary party in a House is seen in the context of a (parent) political party and not in the context of a parliamentary party.
Para 3 of the verdict says: “Turning to the second question and keeping in mind the answer to the first, it is our view that the vote of any member (including a deemed member) of a Parliamentary Party in a House that is cast contrary to any direction issued by the latter in terms of para (b) of clause (1) of Article 63A cannot be counted and must be disregarded, and this is so regardless of whether the Party Head, subsequent to such vote, proceeds to take, or refrains from taking, action that would result in a declaration of defection”. That is, in this para, again the context is the relationship between a party head and a would-be defecting member. Further, the para also means that a parliamentary party acts in accordance with the directions of the party head. In other words, the head of the parliamentary party is unimportant and irrelevant to be mentioned even.
Interestingly, in the May 17 verdict, the word “head” has been used twice and that in conjunction with the “party” as the “party head” and not as the “head of the parliamentary party.” Nowhere in the verdict has the term, the “head of the parliamentary party” been used.
The question is this: why has the May 17 verdict not used words “head of the parliamentary party” even once despite the fact that these words have been used in Article 63A? How come is it possible that the judges of the SC may avoid using the words, the parliamentary party’s head, who affords a central connection between a party head and a parliamentary party (and its members)? What kind of interpretation of Article 63A the verdict has done, devoid of the words “head of the parliamentary party”?
It is apparent that, in the said verdict, a deliberate effort was made to exclude the words “head of the parliamentary party”. In the verdict, if the words “head of the parliamentary party” were used, a fourth player would enter the discussion. Nevertheless, it also means that the verdict assumes that the head of the parliamentary party would be insignificant and that only a parliamentary member may be focused on as a prospective defector.
On the other hand, in the July 26 verdict on the election for the Chief Minister of Punjab, the words the “head of the parliamentary party” have sprung into action. Now, the new verdict refers to Article 63A essentially in context of the “head of the parliamentary party” and this time the words the “party head” have gone into the background. Further, this time, the words the “head of the parliamentary party” have become potent to sway the verdict.
It is apparent that the May 17 verdict deliberately omitted (or evaded) the words the “head of the parliamentary party” to establish a direct relationship between a party head and a member in a House to benefit the PTI, whereas the July 26 verdict brought to life the omitted words to establish an indirect relationship between a party head and a member in a House through the “head of the parliamentary party” to the detriment of the PDM. Not legal nuance, this is sheer dishonesty.
