A dark 63-A advice
IN Presidential reference seeking advice on Article 63A (under Article186), a five-member bench of the Supreme Court in a 3-2 split opinion advised the president after reading it with Article 17 that defected party members’ vote will not be counted.
The two dissenting justices however rightly maintained that giving an opinion on the presidential reference was akin to “rewriting the Constitution”.
On lifetime disqualification, matter was left to parliament to make laws and to stop horse-trading.
Legal experts including Ex-AG Irfan Qadir are of the view that since it is an advice [for the president] so it’s legally not binding on the government to follow it.
He said that the advice can be implemented if both parties agree and submit to the jurisdiction of court as the arbiter.
It is not the case here. It means that PMs and CMs can ignore the president’s order to take a vote of confidence because it has no legal value which, like fuel subsidy, was apparently filed to derail the economy, constitution and democracy.
History shows that governments have not upheld such advice in the past and as such there was no violation of Article 190, said Ex-AGP.
Apparently, the President’s office was used for his party government facing a vote of no confidence and to impose early elections.
It merits accountability of all those who are involved including the President who failed to uphold his oath of office and keep it apolitical.
During the hearing, the Attorney General of Pakistan said that Article 63A is a complete code.
Ex-AGP Qadir also said that it is a command and as such needs implementation not interpretation.
The reading of Article 63A (disqualification of a Political Party member) with Article 17 (fundamental citizen right of political association) is an attack on a vote of no confidence which merits immediate review.
President of the Pak SC Bar Association has already hinted about filing a review (May 18, 2022 Capital Talk).
Vote of no-confidence is the bedrock of parliamentary form of democracy. A sitting government is accountable to the public on a daily basis.
It explains oversight of surveys, opinion polls and media as indicators of good governance, living costs and safety in democracy.
If democracies are given five years terms then it undermines democracy. The security of the term turns democracy into dictatorship. The arguments given against a vote of no confidence are flawed and undemocratic.
If Article 68 was introduced to avoid no confidence then lawmakers, the Constitution and ECP should ensure that a vote of no confidence is equally protected irrespective of the number of lawmakers bringing it.
The law should ensure that the PM or CM should serve or be voted out with a vote of no confidence.
This is how democracy should distinguish itself from dictatorship. Fixed-term Parliaments Act 2011 has been repealed. It allows a vote of no confidence to dissolve parliament. Prevent British democracy being paralyzed.
The Government of the day governs as long as it commands the confidence of the public with the central role of the voters in democracy.
Our 63A advice instead of reaffirming role of voters in our democracy has made citizen’s rights subservient to politicians who serve at their pleasure in parliament including President, PM, CMs and Governors.
It is dark advice. It is too early to judge the outcome of the government in Punjab. There are many options after the ECP decision on 25 dissenting MPAs.
It is widely believed that the case will be discarded on technical grounds due to lack of clear party instructions.
The second vote will be on available members not required number in the first vote. The aim of the ousted government was to jam the political system of the largest province of the country to force early elections which is undemocratic and merits accountability.
The resignation of the last Punjab CM and change of Governor was planned. As per the relevant laws including Election Act 2017, it is the responsibility of the political party to follow given laws to report dissenting MPs to the ECP.
It is a political party’s job to bring evidence against their corrupt members and then report them to the ECP.
The member can then appeal against the decision of ECP in the SC. Courts and ECP should not entertain political parties that fail to uphold election laws including party elections.
Horse Trading is used for political advantage rather than accountability. Political party heads and the politicians are acting as judge and jury both.
It is the responsibility of all other democratic institutions to ensure that other state institutions are free from such political pressure including holding elections, decision of Election Commission and securing legitimacy of governments formed following vote of no-confidence.
It is not a choice but a constitutional obligation to protect parliamentary democracy. The entertainment of 63-A has been at the cost of institutional superiority.
It is opined that prudence or logic wins in other democracies when there is clash of jurisprudence (application and enforcement of law) and legisprudence (system used in European countries in which it is essential to act upon rules).
The Election Commission of Pakistan is an independent institution. ECP decision on defections is likely to be upheld because 63A Presidential Reference is not binding. It will strengthen the ECP.
—The writer is senior political analyst based in Islamabad.
