THE reason why Article 63-A was inserted in the Constitution was that on certain important matters, such as electing a prime minister or a chief minister, or casting vote on a confidence or no-confidence motion or on a money bill or amendment of the Constitution, all elected members of a political party were required to vote on the basis of a joint stand of the parliamentary party to which they belong. Any member voting or abstaining from voting in disregard of the joint stand was to be taken as an act of defection from the party which in turn could lead to his removal from the House.

This intention of the Constitution becomes clearly apparent from a plain reading of Article 63-A(1)(b) of the Constitution which says:

“If a member of a Parliamentary Party comprised of a single political party in a House votes or abstain from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to (i) election of the Prime Minister or the Chief Minister or (ii) a vote of confidence or a vote of no-confidence or (iii) a Money Bill or a Constitution (Amendment) Bill, he may be declared in writing by the Party Head to have defected from the political party and the Party Head may forward a copy of the declaration to the Presiding Officer and the Chief Election Commissioner and shall similarly forward a copy to the member concerned.”

Editorial: Defection rulings

Article 63-A(1)(b) of the Constitution clearly entrusts parliamentary parties to express their respective joint stand in the form of direction issued to their elected members. It is this direction that binds all its members to vote on matters contained in Article 63-A(1)(b) and in case any of them votes or abstains from voting in disregard of direction of his own parliamentary party, he would be treated as defector which could lead to his de-seating from the House.

The reason Article 63-A gives primacy to the parliamentary party and not to the party head is that matters covered by Article 63-A are too important, each of which needs to be decided on the basis of the concept of ‘collective wisdom’. Hence, Article 63-A(1)(b) vests power in the parliamentary party to set the course as to how a matter is to be voted upon. This collective will of all elected members of a parliamentary party is to be reached either unanimously by all members of a parliamentary party or by its majority.

Any direction, be it of the party head, which is contrary to the direction of the parliamentary party, is extraneous to the command laid down by the Constitution.

There can be a situation where on matters covered under Article 63-A of the Constitution, the collective decision of a particular parliamentary party clashes with the decision of its party head. This may rarely happen but nevertheless a possibility exists. In such a situation, the presiding officer has to look at Article 63-A(1)(b) of the Constitution.

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It says where a member votes or abstains from voting contrary to any direction issued by the parliamentary party to which he belongs, such an act is treated as an act of defection from the party, leading to his de-seating. The direction as to how a member should vote comes from the parliamentary party only. That is the mandate of the Constitution

Role of the party head under Article 63-A(1)(b): The right of the party head to make a declaration of defection to the presiding officer and the chief election commissioner, in terms of Article 63-A(1)(b) can be invoked only when a member of his party has voted in disregard of the direction issued by his parliamentary party. So in that eventuality only a party head can declare to the presiding officer and the chief election commissioner that his party member has defected from his political party and that he be de-seated.

Article 63-A(1)(b) says “votes or abstain from voting in the House contrary to any direction issued by the Parliamentary Party”. Thus Article 63-A(1)(b) sets a condition precedent even for the party head to make a declaration of defection only when a member of his party has voted contrary to the direction issued by his parliamentary party.

So whenever a case of defection against an elected member arises within the ambit of Article 63-A(1)(b) of the Constitution, the presiding officer as well as the Election Commission has to see what direction was issued to him by his parliamentary party. Any direction, be it of the party head, which is contrary to the direction of the parliamentary party, is extraneous to the command laid down by the Constitution in Article 63-A(1)(b).

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A party head of a political party cannot be placed in a position akin to that of a shareholder in a limited company. Elected parliamentarians are not ‘shareholdings’ in the hands of a party head, vesting in him arbitrary powers to use their strength in a manner he pleases. There is no room for arbitrariness left for the party head in Article 63-A(1)(b).

Where the elected members of a political party have collectively decided to vote then their party head, sitting outside parliament and not constitutionally responsible to the people for the acts of omissions and commissions of his elected members, cannot override their collective decision by altogether rejecting the concept of intra-party political plurality.

It is for this reason that Article 63-A(1)(b) was incorporated in the Constitution which upholds democratic norms and gives primacy not to the party head but to the collective decision of the parliamentary party, to decide as to how its members are to vote on matters covered by Article 63-A(1) (b). It is for this reason that this article binds even the party head to judge defection on the part of any member of his party solely on the litmus of direction issued by his parliamentary party.

The writer is a former justice of the Supreme Court of Pakistan.

Published in Dawn, July 30th, 2022