No confidence reference

The presidential reference is a delaying tactic

In the face of its looming defeat in the National Assembly’s impending vote and the President’s Reference to the Supreme Court regarding the Opposition’s  No-Confidence Motion, it seems that the PTI Government has resorted to delaying tactics in the hope that this might change the outcome.

The central point of this Reference, in which the Government’s application seeking advisory jurisdiction of the Supreme Court has been joined with with  the Supreme Court Bar Association’s petition for the SC’s original suo motu  jurisdiction, is the interpretation or judicial clarity of Article 63A of the Pakistan Constitution. This provision specifically deals with the subject of disqualification of the members of National Assembly on the ground of defection from their political party.

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Firstly, it states that on a no-confidence (or confidence)  motion under consideration in the Assembly, if a member does vote or abstain from voting  contrary to the direction of his political party, the head of his party (“Party Head”) may declare that the member  has defected from the party. However, prior to issuing such a written declaration of defection  the Party Head “shall” send a show cause notice to the member as to why he should not be declared to have defected from the party.

Secondly, the Party Head “may” then send a copy of this declaration to the Speaker (Presiding Officer) of the Assembly. Thirdly, the Speaker “shall” forward the declaration within 2 days to the Chief Election Commissioner. Fourthly, the Chief Election Commissioner then tables the declaration to the Election Commission within 30 days for its decision to confirm this declaration. Upon such confirmation the defecting member “shall” stop being a member of the Assembly and his seat to be declared vacant.

Fifthly, the member “may” file an appeal within 30 days against the confirmation order of the Election Commission to the Supreme Court. Sixthly and finally, the Supreme Court “shall” render its decision within 90 days of filing the appeal.

When our Constitution is talking about “National Assembly” (or House) in this disqualification clause, it’s not talking about a concrete or mortar building of the National Assembly. It is talking about the National Assembly in session comprising human members who have been elected by the people for a period of five years.

As is evident, disqualification of a member on account of his dissenting vote is neither automatic nor mandatory. It’s the end result of a long, deliberative process in which the Party Head may or may not commence disqualification proceedings in the first place and in which the dissenting member has full due process rights of  show cause and appeal.

We must also note that the disqualification process for defection is triggered only when and after a member actually casts such vote in the Assembly.  His/her vote is fully effective and valid to be counted no matter how hostile and  anti-party his/her behaviour has been before voting.

By the way in other democracies, people’s representatives have an unassailable right to vote as they deem fit and vote according to their conscience. If ordinary citizens have this right why can’t their representatives in the assemblies have the same right? In U.S. Congress, according to GovTrack (www.Govtack.us)  an entity that compiles Congressional data, dissenting votes against party lines are cast 30 percent of the time without any action taken against the defecting Congressperson. In the UK also contrary votes against the dictates of the party are often cast by the parliamentarians with the maximum punishment of being expelled from the party.

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Regarding the period of a defecting member’s disqualification from the Assembly, the constitutional provision of Article 62, that deals with qualification of members cannot be applied for the purpose of determining the disqualification period on account of defection. Disqualification and qualification of members are separate subjects in our Constitution for which separate Articles are provided.

As far as determining the period of disqualification for defection is concerned, the courts have to look within the parameters of Article 63A, the Constitution’s only and exclusive provision on this specific subject. It’s  a basic principle of constitutional interpretation that where provisions for specific topics exists in the Constitution, they takes precedence over other articles or provisions that do not specifically pertain to that particular topic.

Article 63 that deals with disqualification on grounds other than defection and Article 62 that pertain to the qualifications for members would be hard pressed to be applied in this case. Though length of disqualification is not mentioned in Article 63A, the legislative intent is obvious: to limit the disqualification and unseating of the errand member to the fixed term of the National Assembly.

Pursuant to Article 63AI4), upon confirmation of defection declaration by  the Election Commission,”…the member shall cease to be a member of the House and his (her) seat shall become vacant.”

“House” means the National Assembly (or the Senate as the case may be)–Art 63A(7)(b). Article 52 fixes the term of the National Assembly as five years maximum. So its evident that the defecting member shall be disqualified from the National Assembly for the remaining term of that Assembly, not exceeding five years.

We must understand that when our Constitution is talking about “National Assembly” (or House) in this disqualification clause, it’s not talking about a concrete or mortar building of the National Assembly. It is talking about the National Assembly in session comprising human members who have been elected by the people for a period of five years. Furthermore a member’s seat in the Assembly, which becomes vacant upon his disqualification, is only for five years-the maximum duration for which a member can be disqualified for this reason.

Dr Tausif Kamal
Dr Tausif Kamal
Dr Tausif Kamal is a U.S.based attorney at law, and can be c6ntacted at [email protected] and [email protected]

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