Pakistan is once again in the middle of crisis. The Supreme Court ruling on Dost Muhammad Mazari’s interpretation of article 63-A is awaited – on whether directions for casting of votes by a parliamentarian need to be issued by the parliamentary party or the party head.
To interpret article 63-A, jurists must consider the three landmark judgments that are at variance with each other on the issue in question. In the judgment of PLD 2015 SC 401, full bench of the Supreme Court interpreted article 63-A to be one where the party head was to be the deciding entity for parliamentarian votes and what the relationship of the voting parliamentarian with the party head that issued those instructions was to be.
Yet in the subsequent landmark case of 2018 SCMR 1043, the Supreme Court took a variant stance wherein it ignored the party head and emphasised the role of the parliamentary party or party whip in issuing directions for the vote. The Supreme Court stated the following in this regard:
“As such, there is no clear evidence available on record to establish that the Parliamentary Party or the Party Whip had issued instructions to the Respondent … As such, the Party Head cannot be given an unbridled and unchecked authority to pick and choose from amongst members of his party who are similarly placed for the purposes of issuing declaration against them. We are therefore not persuaded to hold that the Respondent had defected by reason of abstaining to vote in accordance with the instructions issued to her by the Parliamentary Party or the Party Whip.”
This is in stark contrast to the earlier judgment by the full bench, and is doubled down in the most recent controversial judgment of the Supreme Court regarding the presidential reference, which the incumbent Punjab Deputy Speaker relied on, stating:
“Turning to the second question and keeping in mind the answer to the first, the vote of any member (including a deemed member) of a Parliamentary Party in a House that is cast contrary to any direction issued by the latter in terms of para (b) of clause (1) of Article 63A cannot be counted.”
Here, the Supreme Court used the term latter which highlights the directions being issued by the parliamentary party. When dealing with variant precedents, it is the rule of thumb that the most recent interpretation is followed if the precedent is horizontal, not vertical.
If one is to peruse article 63-A, it is quite noticeable that the legislative differentiated between both the party head and the parliamentary party whereas the former was allotted the role of initiating defection proceedings against the defecting parliamentarians, the latter was allotted the role of giving directions to the said parliamentarians. It is an important principle of interpretation of statutes that whenever a lawmaker defines an object in law with separate distinction then it is deemed that such a distinction was deliberate, not an oversight. Thus, it can be stated that the article in question differentiated between the party head and the parliamentary party which was interpreted on the basis of precedents.
It is important to highlight that the Supreme Court has stood against the dictatorship of the party head in the 2015 judgment, where it held that the parliamentary party cannot be a dictatorship of the party head, who may not even be a peoples’ representative.
Indeed, Pakistan is meant to be a democracy, and it is expected that the political parties would be democratic as well. There can be no doubt that what happened within the Punjab Assembly was a misinterpretation of the law as well as the precedents of the Supreme Court. It can only be called a draconian farce.
However, can the Supreme Court truly absolve itself from the role it has played in this crisis? The judgment of the Supreme Court implemented the concept of rejection of votes by members deemed to be defecting before the law could even declare them as defectors. This unheard principle has created the current crisis -- as the speaker can now reject votes, in as vulgar a manner as we witnessed in the Punjab Assembly recently.
There can be no doubt that this concept of rejection or the declaration of ‘Trustee Chief Minister’, a term that is nowhere to be found in the Pakistan law, has not only tarnished the reputation of the Supreme Court as the supreme interpreter of law but also exacerbated the political crisis.
It is time the Supreme Court ceases to give populist and political judgments, and interprets the law to explain the law of defection. Only proper interpretations of law under the enshrined principles can truly end this constitutional crisis and bring some form of stability to Pakistan.
To interpret article 63-A, jurists must consider the three landmark judgments that are at variance with each other on the issue in question. In the judgment of PLD 2015 SC 401, full bench of the Supreme Court interpreted article 63-A to be one where the party head was to be the deciding entity for parliamentarian votes and what the relationship of the voting parliamentarian with the party head that issued those instructions was to be.
Yet in the subsequent landmark case of 2018 SCMR 1043, the Supreme Court took a variant stance wherein it ignored the party head and emphasised the role of the parliamentary party or party whip in issuing directions for the vote. The Supreme Court stated the following in this regard:
“As such, there is no clear evidence available on record to establish that the Parliamentary Party or the Party Whip had issued instructions to the Respondent … As such, the Party Head cannot be given an unbridled and unchecked authority to pick and choose from amongst members of his party who are similarly placed for the purposes of issuing declaration against them. We are therefore not persuaded to hold that the Respondent had defected by reason of abstaining to vote in accordance with the instructions issued to her by the Parliamentary Party or the Party Whip.”
It is an important principle of interpretation of statutes that whenever a lawmaker defines an object in law with separate distinction then it is deemed that such a distinction was deliberate, not an oversight.
This is in stark contrast to the earlier judgment by the full bench, and is doubled down in the most recent controversial judgment of the Supreme Court regarding the presidential reference, which the incumbent Punjab Deputy Speaker relied on, stating:
“Turning to the second question and keeping in mind the answer to the first, the vote of any member (including a deemed member) of a Parliamentary Party in a House that is cast contrary to any direction issued by the latter in terms of para (b) of clause (1) of Article 63A cannot be counted.”
Here, the Supreme Court used the term latter which highlights the directions being issued by the parliamentary party. When dealing with variant precedents, it is the rule of thumb that the most recent interpretation is followed if the precedent is horizontal, not vertical.
If one is to peruse article 63-A, it is quite noticeable that the legislative differentiated between both the party head and the parliamentary party whereas the former was allotted the role of initiating defection proceedings against the defecting parliamentarians, the latter was allotted the role of giving directions to the said parliamentarians. It is an important principle of interpretation of statutes that whenever a lawmaker defines an object in law with separate distinction then it is deemed that such a distinction was deliberate, not an oversight. Thus, it can be stated that the article in question differentiated between the party head and the parliamentary party which was interpreted on the basis of precedents.
It is important to highlight that the Supreme Court has stood against the dictatorship of the party head in the 2015 judgment, where it held that the parliamentary party cannot be a dictatorship of the party head, who may not even be a peoples’ representative.
There can be no doubt that this concept of rejection or the declaration of ‘Trustee Chief Minister’, a term that is nowhere to be found in the Pakistan law, has not only tarnished the reputation of the Supreme Court as the supreme interpreter of law but also exacerbated the political crisis.
Indeed, Pakistan is meant to be a democracy, and it is expected that the political parties would be democratic as well. There can be no doubt that what happened within the Punjab Assembly was a misinterpretation of the law as well as the precedents of the Supreme Court. It can only be called a draconian farce.
However, can the Supreme Court truly absolve itself from the role it has played in this crisis? The judgment of the Supreme Court implemented the concept of rejection of votes by members deemed to be defecting before the law could even declare them as defectors. This unheard principle has created the current crisis -- as the speaker can now reject votes, in as vulgar a manner as we witnessed in the Punjab Assembly recently.
There can be no doubt that this concept of rejection or the declaration of ‘Trustee Chief Minister’, a term that is nowhere to be found in the Pakistan law, has not only tarnished the reputation of the Supreme Court as the supreme interpreter of law but also exacerbated the political crisis.
It is time the Supreme Court ceases to give populist and political judgments, and interprets the law to explain the law of defection. Only proper interpretations of law under the enshrined principles can truly end this constitutional crisis and bring some form of stability to Pakistan.