Monday November 28, 2022

The constitution is supreme

May 13, 2022

The Election Commission of Pakistan has dismissed the references against 20 dissident PTI MNAs filed by the PTI. The ECP has held that Article 63-A of the constitution, dealing with disqualification on the ground of defection is not applicable in the case of these 20 MNAs as they did not vote on the no-confidence resolution.The decision is not only strictly in conformity with the relevant article of the constitution but is also logical and appeals to common sense.

Perhaps for the benefit of the readers it would be pertinent to quote the entire text of Article 63-A to remove the haze that still might be in the minds of some people. The article reads thus: “If a member of a parliamentary party composed of a single political party in a House; resigns from membership of his political party or joins another parliamentary party; or votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, in relations to election of the prime minister or the chief minister; or a vote of confidence or a vote of no-confidence; or a money bill or a constitution (amendment) bill; he may be declared in writing by the party head to have defected from the political party, and the head of the parliamentary party may forward a copy of the declaration to the presiding officer, and shall similarly forward a copy thereof to the member concerned: Provided that before making the declaration, the party head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him.

A member of a House shall be deemed to be a member of a parliamentary party if he having been elected as a candidate or nominee of a political party which constitutes the parliamentary party in the House or, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such parliamentary party after such election by means of a declaration in writing.

"Upon receipt of the declaration under clause (1), the presiding officer of the House shall within two days refer the declaration to the Chief Election Commissioner who shall lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner. Where the Election Commission confirms the declaration, the member referred to in clause (1) shall cease to be a member of the House and his seat shall become vacant. Any party aggrieved by the decision of the Election Commission may within thirty days, prefer an appeal to the Supreme Court which shall decide the matter within ninety days from the date of the filing of the appeal”.

As is abundantly clear from the above quoted text, the case for declaring a member as having defected from the party is justified only when a member actually commits the act of voting against the directions of the party on whose ticket he or she has been elected to the parliament. The architects of this article by inserting it in the constitution rightly accepted the logic that nobody could be punished or penalized for any offence which s/he actually has not committed. It is also a matter of common sense and morality. The constitution and laws are enacted to ensure peaceful and orderly development of a society and the state from which they derive their sanctity, making it obligatory on all stakeholders to abide by them in letter and spirit. The judiciary is the custodian of the constitution; its role is also supplemented by other constitutional entities empowered to ensure implementation of constitutional provisions related to their area of responsibility.

The ECP is a constitutional entity vested with powers to ensure the holding of free and fair elections as well as dealing with issues related to defection of members of parliament. The decision given by the ECP in the defection case is strictly in line with the spirit and content of Article 63-A. In case any party feels otherwise, it can prefer an appeal to the apex court within thirty days.

But the PTI has not shown the grace to accept the decision ungrudgingly or without throwing unwarranted flak on the ECP. Fawad Chaudhry termed the decision ‘foolish’ and as per the expectations of the party. Emphasizing the alleged partisan role of the ECP, he announced that the PTI would not only file an appeal against the decision in the SC, it will also file references against the CEC in the Supreme Judicial Council. Well as far as the filing of an appeal in the SC is concerned, it is the legitimate right of the party but casting aspersions at the ECP and terming the decision foolish cannot be condoned.

It is indeed unfortunate to note that the PTI and its chairman have chosen to target the ECP -- notwithstanding the fact that the CEC was a nominee of the PTI itself. The PTI expected him to endorse every illegal and unconstitutional act of the party. The independence, uprightness and commitment of the CEC to go by the book did not sit very well with the former ruling party. The trouble started when the ECP nullified by-elections in NA-75 because of a blatant attempt by the PTI to rig them; the ECP ordered re-polling which resulted in the victory of the PML-N candidate. Instead of showing remorse over its misdeeds, the party started targeting the ECP and the CEC.

This is really unbecoming of a party which claims to be the largest political force in the country. The party, particularly Imran Khan who is a leader in his own right and has considerable following in the country, needs to recalibrate its political strategy. For an orderly and smooth running of state affairs it is imperative for political parties to show due respect for state institutions -- which should not be maligned and denigrated for upholding the constitution. Political disputes and issues must be settled in conformity with recognized political and democratic norms within the ambit of the constitution and law. That is the only way forward.

The writer is a freelance contributor. He can be reached at: