AS the marathon television transmissions continue to report remark after remark of the Supreme Court matched only by the running commentary of a cricket match on the edge, one thing is clear, the politico-legal crisis is far from over and the highest court of the land has once again taken centre stage.

The latest politico-legal battle started with a spat between the Chaudhrys of Gujrat who, despite once being the very picture of bonhomie and family values, now stand poles apart.

It was Chaudhry Shujaat Husain’s ‘directions’ as ‘party head’ of the PML-Q which was used by the deputy speaker of the Punjab Assembly to disregard the 10 votes of the PML-Q parliamentary party in the province polled in favour of Chaudhry Pervaiz Elahi. In doing so, the deputy Speaker placed his reliance on Article 63-A(1)(b) of the Constitution and the decision of the Supreme Court in Ref No.1 of 2022. Interestingly, the party’s lawmakers in Punjab dismissed such ‘directions’ as irrelevant in view of Article 63-A(1)(b) which refers to the “directions issued by the parliamentary party” and not the ‘party head’.

The question, then, that is before us is whether the ‘party head’ has the power to arbitrarily dictate the entire ‘parliamentary party’, which actually represents the collective will of the electorate?

How could the deputy Speaker have done what he did?

The most important distinction that needs to be drawn is that a ‘political party’ and ‘parliamentary party’ are not one and the same thing. Article 63-A(2) defines a parliamentary party. A parliamentary party is solely composed of members of one political party elected to that particular House, in this case the provincial assembly. Simply put, like the age-old saying ‘a sun is a star but not all stars are the sun’, all members of a ‘parliamentary party’ are members of a political party but not all members of a ‘political party’ can be members of a ‘parliamentary party’, the former in this case being the elected representatives of the people of Punjab, and representing the will of the populace.

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Despite that, the deputy Speaker of the provincial assembly gave credence to the directions of the ‘party head’ over the collective decision of the parliamentary party. Article 63-A of the Constitution clearly provides that, in this case, it is in fact the parliamentary party which shall issue ‘directions’ in respect of the voting in the election of the chief minister, and the party head shall thereafter give the declaration of defection against those members who have violated such ‘directions’.

The question, therefore, is, what constitutes the ‘directions’ of a parliamentary party? If we go by the clear words of the Constitution ie Article 63-A(1)(b) read with Article 63-A(2), a parliamentary party, in this case, is made up entirely of members of the PML-Q in the Punjab Assembly; therefore, the directions of such parliamentary party are the views of its members and cannot be superseded by the will of someone who is neither a part of such an assembly, nor by extension, a member of the parliamentary party.

If so, how could the deputy speaker have done what he did? The answer lies not in the express words of the Constitution, but in the interpretation given to them by the courts in various judgements.

As part of their decision on the presidential reference, the Supreme Court has given considerable importance to the fundamental rights of political parties. While they stopped short of expanding on whether such political parties should be run as a collective decision-making body or as a one-man show by the ‘party head’, they did place the will of the collective ie the political party over and above that of the individual members of the parliamentary party.

Interestingly, eight judges of the apex court in the case PLD 2015 401 — where, inter alia, the mandate of a party head, pursuant to the amendment to Article 63-A, to dictate the will of the parliamentary party was impugned — interpreting Article 63-A of the Constitution opined that the “decision of the party as to how to vote has been conferred upon the party head”. The use of the word ‘party head’, instead of ‘parliamentary party’ might be perceived by some as having empowered the ‘party head’ to a level where he could dictate his parliamentary party and have their votes disregarded for being against his wish.

As it stands, even for a layman, the express wording of the Constitution is clear, yet subsequent case laws have allowed the room to import the will of the party head to take precedence over that of the parliamentary party. Be that as it may, the time is now ripe for the judiciary to once again hold the field and define the role of a party head vis-à-vis that of a parliamentary party and put an end to the colourful interpretations of Article 63-A.

The writer is a lawyer.

Twitter: @sheheryarzaidi

Published in Dawn, July 26th, 2022