The first two paragraphs of the short order are devoted to emphasizing a conjoint reading of articles 63A and 17(2). The order stresses that the two articles are “intertwined”, and therefore not to be read independently of each other. It goes on to say that political parties lie at the heart of the parliamentary democracy, and it is in this spirit that article 63A has been designed by the constitution makers to put in place a mechanism to safeguard interests of political parties, thus fostering a healthy environment for democracy. One of the “deleterious effects” of defection is to “delegitimize parliamentary democracy”. It has been likened to ‘cancer’ poisoning the body politic.
Paragraph No. 2 states that article 63A must be interpreted in line with its “spirit and intent”. It serves as deterrence, and its mere presence in the constitution is sufficient.
Under article 17, it is every citizen’s fundamental right to form and be a member a political party. Democracy and political parties go hand in hand. Party decisions are made on the basis of a majority vote. But this is seldom practiced in Pakistan, where the party head announces decisions, and hardly ever puts it before its members to vote. Intraparty elections are hardly held.
The SC has held that the parliamentary party line, decision, or vote in a particular matter would take precedence over individual members.
The Supreme Court has taken the sting out of article 63A, and has rendered it ineffective and toothless. From whatever angle one may view the article, one cannot read, “not counting” anywhere in its terse text, nor does it give any such impression.
Dissenting voices play crucial roles in flourishing democracy. What if a party takes a wrong decision by a majority and some members upon the voices of their conscience dissent or do not vote at all? However, as per the order, votes of members of parliament would not be counted or considered, but would also suffer consequences. This novel interpretation defies logic. It violates the fundamental right enshrined in article 13 of the constitution, which embodies the principle that no one can be vexed twice for the same cause. With a single stroke of a pen, the Supreme Court has not only taken away a dissenting member's vote but also subjected him to the punishment of disqualification. If the vote is not counted, why would the consequences follow?
The Supreme Court has taken the sting out of article 63A, and has rendered it ineffective and toothless. From whatever angle one may view the article, one cannot read, “not counting” anywhere in its terse text, nor does it give any such impression.
One wonders, why article 63A was inserted in the constitution in the first place if the defector’s vote was not to be counted? They could have simply declared defection unconstitutional and unlawful and could have added it in article 63. The Supreme Court has dealt a crushing blow to the democratic process and the law of the land.
There is no gainsaying that article 63A comes on the heels of article 63. Be that as it may, there was no justification to import the contents of article 63 into article 63A. Clause 1 of article 63 is exhaustive and enumerates a long list, starting from (a) to (p) to show under what circumstances a member of parliament would be facing disqualification. Nevertheless, it does not include article 63A in its scope. It is a trite law that the inclusion of one thing is the exclusion of other. Else, the constitution framers would not have stated, “shall cease to be a member of the House and his seat shall become vacant” in clause (4) of article 63A. When the constitution makers themselves specify a consequence, how could the Supreme Court assume the role of the parliament and hold defecting members “disqualified” within the meaning of article 63? Needless to emphasize, article 63A is a self-contained and self-executing provision. It has been turned on its head to engraft article 63 in article 63A.
Had the late Justice of Antonin Scalia of the Supreme Court of USA been alive, he would have had a heart attack to read the Supreme Court's short order. As per Mirza Ghalib:
Hairan Hoon Dil Ko Roun k pitu jigar ko mai
(Baffled I'm! to cry my heart out or to beat my chest)
This approach of the apex court appears to be inconsistent with its avowed declarations in the past that one provision of the constitution is not to be so interpreted to render other provision(s) inoperative.
The question as to whether advisory opinion rendered under article 186 is binding has been answered indirectly by the Supreme Court in paragraph No. 6 of the short order, which states that both jurisdictions conferred upon it under articles 184(3) and 186 of the constitution have been exercised at the same time. The PTI filed two petitions under article 184(3), seeking to disqualify the defecting members of the PTI for life. While dismissing the petitions of the PTI, pursued by Babar Awan, the apex court has hit upon a novel idea to make its advisory opinion binding on all the stakeholders under article 186, which are not even parties to the proceedings, thus infringing their right under article 10-A of the constitution, which encapsulates the principle that nobody should be condemned unheard.
Practically speaking, article 95 of the constitution under which motion for no-confidence is moved, has been rendered otiose. This approach of the apex court appears to be inconsistent with its avowed declarations in the past that one provision of the constitution is not to be so interpreted to render other provision(s) inoperative.
Hopefully, the Supreme Court will deal with this aspect critically in its detailed judgment in light of jurisprudence evolved by it over the years.
On the surface, the order has landed Hamza Shehbaz in trouble. In the absence of the governor, who will call the shots? This is also a test for Pervaiz Elahi, the speaker of Punjab Assembly, who is not willing to take on the mantle of governorship despite the mandate of the constitution.
According to a judgment rendered by former Chief Justice Justice Gulzar Ahmad Khan, every judgment of the apex court is to be regarded as prospective unless clearly provided otherwise. If so, the election of Hamza Shehbaz could be viewed as a past and close transaction. This will be the precise question on which the legal battles will be fought in the Lahore High Court and the Supreme Court of Pakistan.