Gaming the constitution

When all sides are intent on gaming the law for political gain, the ambition to be objective – one hesitates to use the word neutral – is a foolhardy venture. Lawyers are trained to speak for one or the other party to an entanglement or to curry favour with the courts. Chomsky’s description of intellectuals at large as “stenographers of power” applies with particular poignancy to lawyers in search of political or courtroom glory. With this caveat in place, let us try and make some objective sense of the legal tremors that have hit the body politic of the state since March of this year. All sides have attacked the judiciary when it has suited the needs of a narrative.

Chaudhry Pervaiz Elahi’s assumption of the office of the chief minister of Punjab is on account of the mockery the PTI’s electoral success on July 17 made of many a presumption about the management of politics in Pakistan. “They didn’t show us the door to let us back in, so soon,” remarked a PTI former federal minister who had come to discuss an unrelated legal issue, two days before the by-elections. PML-N friends were equally confident of their impending success. After July 17, with the people having spoken, success depended on an interpretation of the constitution. PML-N strategists reached out for legal alchemy to turn electoral defeat into success. Article 63A of the constitution was interpreted by the Honourable Supreme Court in a 3-2 split judgment rendered on May17 in response to a presidential reference. The majority held that votes cast by members of an assembly in violation of a direction by their party would stand disregarded in an election or vote of no-confidence regarding the prime minister or a chief minister.

This opinion was followed by the ECP de-seating dissident members of the PTI who had voted for Hamza Shehbaz, helping him get elected as chief minister with 197 votes. The combined consequence of the judgments of the Supreme Court and the ECP was that Hamza Shehbaz’s tally of votes on April 16 stood reduced to 172. This meant that he was not elected chief minister on that day. The Lahore High Court, and then the Supreme Court, ordered a run-off election on July 22.

The contest that was carried out before the ECP between the PTI and its 25 dissidents who had voted for Hamza Shehbaz has become central to the PML-N’s narrative of having been treated unjustly. This contest needs to be understood in some detail. The present writer appeared for some of the dissidents. The reference against the 25 dissidents referred to the ECP by the party head of the PTI, Mr Imran Khan, was based on a letter of April 1 signed by Mr Asad Umar that stated that the party head had decided that PTI members in the Punjab Assembly would vote for Chaudhry Pervaiz Elahi in the election for the post of chief minister.

On behalf of the dissidents the primary objection taken before the ECP was that Article 63A requires a direction of the parliamentary party and not of the party head to bind the members of an elected house. There being no direction of the parliamentary party, the so-called dissidents could neither be de-seated nor their votes, in favour of Hamza Shehbaz, disregarded. The PTI counsel made no attempt to argue that the decision of the party head could bind the elected members of the house. Both sides accepted the principle that only the parliamentary party could bind. At the fag end of the proceedings the alleged minutes of two meetings of the parliamentary party of the PTI in the Punjab Assembly, with no signed attendance sheet, were filed before the ECP. The dissidents denied that such meetings had taken place.

The issue before the ECP, ultimately, was one of factual determination. In the event, the ECP delivered a sadly inadequate judgment that appeared to draw no distinction between the parliamentary party on the one hand and the party head on the other. No reference was made to the so-called minutes of the meetings of the parliamentary party of the PTI in the Punjab Assembly. Appeals filed against the decision came up before the Honourable Supreme Court during the first week of July, with by-elections on 20 of the 25 seats previously held by the dissidents scheduled for July 17. The plea on the part of the dissident appellants for suspending the by-elections on July 17 was not granted. Were the 25 dissidents de-seated and their votes in favour of Hamza Shehbaz disregarded on account of the direction of the party head, as allegedly communicated by Mr Asad Umar, or on account of directions of the parliamentary party of the PTI made in the alleged meetings of the parliamentary party? The issue was never decided by the ECP and remains pending before the Honourable Supreme Court. A determination that the 25 were not bound by the direction of the party head and there was, in fact, no direction of the parliamentary party would have obviated the by-elections of July 17 and the subsequent voting for the post of chief minister on July 22.

On July 1, Chaudhry Pervaiz Elahi and Hamza Shehbaz Sharif agreed before the Honourable Supreme Court to going through with the by-elections on July 17 and the election for the chief ministership of the province on July 22. The 25 de-seated members of the Punjab Assembly, whose appeals were pending before the Honourable Supreme Court, were not party to this consensual arrangement.

With no binding determination by any court of law that the party head could control the voting by the elected members of a house on matters specified in Article 63A, including the election of the chief minister, the PML-N embarked upon an adventure that was bound to fail. An earlier judgment of the Supreme Court removing Mian Nawaz Sharif from the post of party head of the PML-N had declared the party head to be pivotal to a political party. Hence the requirement of being a Sadiq in terms of Article 62(1)(f) was declared applicable to the party head. However, no finding was given that the party head could bind the members of the parliamentary party. The emergence of Chaudhry Shujaat’s letter barring PML-Q members of the Punjab Assembly from voting for Pervaiz Elahi was a travesty of the constitutional process at par with the one perpetrated by the former deputy speaker of the National Assembly Qasim Suri on April 3. Suri’s action was set aside by the Supreme Court on April 7. That judgment established the principle, much to the PTI’s dismay at the time, that proceedings on the floor of the House could be subjected to judicial review by the courts if they amounted to a betrayal of the constitutional process. It was held that Article 69 of the constitution only provides immunity from judicial review to procedural irregularities in the conduct of the business of the House. It was this principle that was gratefully invoked by the PTI in challenging Mazari’s actions of July 22.

Article 63A is drafted in remarkably clear language. It contains two distinct parts. The first part states that there may be consequences for disobeying the directions of the parliamentary party to which a member belongs when such directions pertain to certain specified matters, including the election of the prime minister or the chief minister or a vote of confidence or no-confidence with respect to both. The second part states that in the event of such disobedience the party head, in his discretion, may move a reference for de-seating against the disobedient members before the ECP, which is required to determine whether a direction of the parliamentary party had been disobeyed or not.

The division of powers between the parliamentary party and the party head has a genealogy. Prior to the 18th Amendment, the power to move a reference against a disobedient member was vested in the head of the parliamentary party. The 18th Amendment was informed by the history of forward blocs of the various political parties that were procured during the Musharraf era through NAB and other instruments of persuasion available to the powers that be. While the party heads of the two main political parties, PML-N and PPP, were in exile, the members and the leaders of parliamentary parties remained susceptible to persuasion. The possibility of a majority of the parliamentary party coming under the sway of a Musharraf-like regime with the minority of the parliamentary party remaining loyal to the party head appears to have resulted in the removal of the role of the leader of the parliamentary party.

After the amendment made to Article 63A by the 18th Amendment the party head, who may or may not be a member of the parliamentary party, would decide whether to take action against a minority acting in defiance of the directions of the majority of the parliamentary party. The minority of the parliamentary party might not be moral wretches. In fact, the minority might be a besieged cohort of individuals loyal to the party head and the creed of the political party at large.

The majority judgment of the Supreme Court of May 17 has treated the defying minority of a parliamentary party as a cancerous strain whose disobedient voting must have no consequence at all. The court’s reading of the democratic, parliamentary structure of the constitution and the judicially developed fundamental right of political parties not to be unlawfully ousted from power has resulted in the finding that votes of members of a parliamentary party cast in defiance or disobedience of the directions of the parliamentary party are not to be counted, regardless of the party head taking any action or not. No language to this effect exists in Article 63A. It is a deduction that has embraced controversy at birth and awaits examination by a larger bench of the Supreme Court.

The demand by the PDM parties that the matter pertaining to Dost Mazari’s ruling be clubbed with the review petition against the judgment rendered in the presidential reference as well as the appeals of the PTI dissidents who had voted for Hamza Shehbaz and all matters be placed before a full court was premised on the hope that the full court would restore the 25 votes cast in Hamza Shehbaz’s favour by overruling the opinion of the majority in the presidential reference.

The writer is an advocate of the Supreme Court of Pakistan.

Email: salmanr2002@hotmail.com

Twitter: @salmanAraja