Syed Sharfuddin*
Guess what is the most important point of tomorrow’s session of the Supreme Court (SC) (25/7/22) in consideration of petition No 22/22 dated 22 July 2022 – case of Ch Pervez Elahi vs Deputy Speaker of Punjab Assembly.
The 3-member bench of the SC will consider whether under Article 63-A of the Pakistan Constitution only the parliamentary party itself can issue direction to its members for voting on certain matters including election of PM/CM, or whether the Head of the party can also issue this direction on behalf of the parliamentary party. The said Article does not go into this detail. The 3-member bench will also consider, hopefully, whether in giving such directive the head of the political party will observe the democratic tradition of representing the majority opinion of his party and not take an arbitrary decision on his own. Article 63-A does not clarify this in the event of the head of the party being someone other than the head of the parliamentary party, i.e., is not a member of the house. The defection article, as it is called, was part of the omnibus 18th Amendment which is a flagship amendment in the constitutional history of Pakistan in delegating powers from the Centre to the provinces and has contributed to strengthening the federation. Since the 18th amendment was passed after a long spell of military rule and came only two years after the first multi-party democratic election of 2008, it leaves many things to interpretation which is unhealthy from the point of application of the amended articles to sensitive political situations. It also gives the Judiciary an upper hand in reading the intent of the legislature on disputes arising from these Articles, including Article 63-A.
The dispute over counting or disregarding the vote of the ML-Q legislators at the election of the Chief Minister (CM) is complex. Had it been simple, the SC in its short judgement of 23 July 2022 would have either declared the petitioner the new CM or would have declared the incumbent candidate as elected CM instead of restraining him as a caretaker CM with limited powers until the case is fully heard.
On the face of it, and going strictly by the interpretation of Article 63-A in the SC judgment of 17 May 2022 concerning the status of defection of legislators of the National Assembly against their party head, the ruling of the Deputy Speaker of Punjab Assembly (PA) given on 22 July 2022 is correct and he is right in disregarding the votes of the 10 legislators from ML-Q party in the election of the Chief Minister of Punjab. However, as a constitutional interpretation by the SC always takes into account the intent of the framers of the constitution and purpose of the drafters of its subsequent amendments, the reason for adding Article 63-A to the constitution in 2010 was to discourage one or several members of a parliamentary party from voting against their party line resulting in the betrayal of the mandate given to them by their electorate at the time of their election, and also to end allegations of corruption and moral bankruptcy which has been a bane of floor crossing history of Pakistan’s current and previous parliaments.
At the vote of CM held on 22 July 2022 in the PA, it was observed that all the 10 legislators of ML-Q altogether disregarded their party head’s direction to the point that they were unanimous in rejecting it, irrespective of whether it was taken with or without their consent/knowledge. It is for this reason that the parliamentary head of the party has come to the SC to seek redress for not given the votes needed to show his majority in the election of the CM of PA.
It is also noted that the petitioner who is a member of the concerned parliamentary party was himself a candidate in the election of the CM. The direction of the head of the party to his parliamentary party members to vote for a candidate other than from his own party is against the spirit of defection. In fact, by issuing such an unusual directive, the head of the party himself defected from the party line and committed the very act which Article 63-A aims to discourage for going against the party line.
The SC should take the view that as the party head acted arbitrarily in his individual capacity and did not represent the will of his parliamentary party, with not a single member of the parliamentary party showing agreement with him, the direction conveyed in his letter of 22 July 2022 is ultravirus and inadmissible for disregarding the votes exercised by the parliamentary members of the ML-Q party in the election of CM. The non-circulation of the party head’s letter to ML-Q members is immaterial in this regard. It is also not the responsibility of the Speaker to disclose the contents of the letter to the House before a roll call of vote. What is material is that the party head’s decision was either not known to them or was deemed by his parliamentary party to be undemocratic that did not represent the wishes of the parliamentary membership. Consequently the Deputy Chairman’s decision to disregard the 10 votes of ML-Q was incorrect. As such, the votes cast by the members of ML-Q on 22 July 2022 were in accordance with the spirit of the constitution and do not fall under the purview of Article 63-A and the interpretation of the SC judgement dated 17 May 2022.
The SC bench meeting on 25 July 2022 should therefore rule tomorrow that the petition is admitted and Deputy Speaker should be instructed to announce the revised result in the next session of the PA to be convened immediately in which he should announce Ch Pervez Elahi as the CM of Punjab.
The SC should further direct the parliament to amend Article 63A whenever it can muster the required two third majority in order to clarify it to the extent it requires updating in the light of the several interpretations of the SC given in its recent decisions on this matter.
In the interest of satisfying all parties to this dispute, the judges could also decide to expand its 3-member bench to a full 5-member bench as requested by the defendant. It will, however, make little difference in the outcome of its verdict. Since the CJ is present in this bench and he was also present in the previous 5-member bench, in no way it should be subsumed that it is a lesser bench. In my view if Justice Mandokhel and Justice Miankhel are added to the 3-member bench it would strengthen the petitioner’s plea because in their dissenting notes in May 2022, these two had written that the SC should simply interpret what is written in the constitution and not assume the role of law makers. Therefore, if you go by their argument, the votes of ML-Q legislators must be counted first and any complaint of their defection to the EC should be forwarded later by the party head. This is what the constitution says. This would mean Pervez Elahi becoming CM with immediate effect.
The wily politicians of the country understand that while the public is only interested in finding out from the SC whether or not the party head has the authority to give direction to his parliamentary party about voting in parliament and on that basis which of the two candidates is the CM-elect, this case is far more significant than the fate of CM Punjab. In fact it targets the fundamental lever of Pakistan’s political party system which legitimises the stranglehold of the head of a political party over the entire membership of the party. If Hamza Shahbaz loses this landmark case, it means Chaudhry Shujaat, Nawaz Sharif, Asif Zardari, Molana Fazlur Rahman, Asfandyar Wali and Imran Khan et al will lose their unchallenged supremacy in their respective parties and become subject to the democratic principle of survival of the fittest. If Chaudhry Pervez Elahi wins this case, then a new tradition will be established whereby these unchallenged party heads for life will lose their grip on their parties and the Supreme Court ruling will oblige them to consult their parliamentary members and listen to them instead of taking arbitrary and undemocratic decisions in the name of the party. It is despicable that the Bhuttos and Sharifs have been unwilling to find persons of gravitas outside their families to lead their parties for decades. If this happens, it will be a new beginning in Pakistani politics. It is for this reason that the absolute heads of dynastic parties have come together to prevent the 3-bench panel of the SC from giving its verdict and are pressing for the full SC bench to hear the case.
The military establishment should welcome this change of wind because like the people it too is tired of the fired bullets and old faces in Pakistani politics. The nation awaits the judiciary to help break this monotony and allow an injection of new blood in the veins of Pakistan’s ailing democracy in which political parties become its strong pillars instead of remaining the laughing stock of the institution.
*Mr. Syed Sharfuddin is a former Special Adviser, Political Affairs, Commonwealth Secretariat, London, UK.