There seems to be no end in sight for the sufferings of the Pakis­tan Tehreek-i-Insaf (PTI) as the party, after a likely bumpy ride in the Feb 8 elections, will have to face a tough time in keeping its elected ‘independent’ members in line and under control throughout the tenure of the next National Assembly.

Erstwhile PTI Chairman Barris­ter Gohar Ali Khan had already hinted at the possible difficulties the party might face after the elections when he expressed the fear that the court’s decision could incr­ease the likelihood of “horse-trading”.

He had made the statement while talking to reporters after the Supreme Court upheld a decision of the Election Commission of Pakistan (ECP) revoking PTI’s ‘bat’ symbol.

PTI candidates will now contest the elections as independents with different electoral symbols. The decision has also deprived the PTI of its right to nominate its members on reserved seats for women and minorities.

Mr Khan’s fear seems to be justified, as in the past, the country has witnessed independent lawmakers making bargains many-a time on the occasion of elections for the prime minister and chief ministers, as well as speakers and deputy speakers of the assemblies. Besides, independents have also resorted to ‘blackmail tactics’ at the time of voting on many crucial bills to get their way.

Party members will become ‘independent’ lawmakers, defection clause will not apply to them

In an interview with Geo News, Barrister Gohar reportedly expre­ssed the hope that independent candidates affiliated with the PTI would remain loyal to it, stating that the party also had a ‘Plan C’ for regaining its lost reserved seats.

He then explained that if independent candidates affiliated with the PTI joined the party again after it reformed itself, then the party would regain its reserved seats.

PTI’s Information Secr­e­­tary Rauf Hassan, when contacted, said the party had prepared a plan to keep its elected members within the party discipline. He, however, refused to disclose the plan.

A source in the PTI later claimed that the party leadership had decided to obtain affidavits from the elected members that they would not defect to the party at any stage and would continue to vote in the assemblies in line with the party leadership’s decision.

He added the party had given tickets only to the loyal members after thorough scrutiny in the wake of the defections it had already faced after the May 9 incident.

Defection clause

Parliamentary and political experts also believe that the PTI may not be able to control its members in the upcoming assemblies as the defection clause, Article 63-A, will not apply to them.

They say that these members, even if remain loyal to their party and do not join any other party within three days of their notification of victory, will be considered as independents throughout the five-year tenure of the assemblies.

According to Pakistan Institute of Legislative Development and Trans­parency (Pildat) president Ahmed Bilal Mehboob, the Election Rules 2017 are quite explicit in this respect. For independent legislators joining a political party to give that party the advantage of claiming proportionate reserved seats, he said, Rule 94 defined the political party as the one which had been allotted a symbol.

“If the party has obtained a symbol by then and the party has nomination papers filed for reserved seats, a case may be made for claiming its share of reserved seats. However, one may interpret that to qualify for reserved seats, a party should contest the general elections on a common symbol,” he said, adding that he believed that the matter would ultimately revert to the Supreme Court for conclusive adjudication.

According to Mr Mehboob, independent members can join any party at any time during their term or form a new party but in order to be counted for giving weightage to a parliamentary party, they must join the party within three days of final notification of their membership.

Similarly, former ECP secretary and Punjab Minister for Law and Parliamentary Affairs Kanwar Dilshad, when contacted, said the PTI could go for fresh intra-party elections and satisfy the ECP after the general polls, but the PTI-backed candidates would not be able to join the party.

He said the law prescribed time for independents to join a party, and if they didn’t, they would remain independents thro­u­­ghout their five-year term.

“So there is no way, the PTI can make up for the loss of reserved seats”, he said, adding the independently elected lawmakers can form groups in respective houses with whichever name.

Rule 92(6) of the Election Rules 2017 provides for independents to join a party within three days if they want to be counted in calculation for the share of reserved seats for each party.

It states: “The expression ‘total number of general seats won by political party’ shall include the independent returned candidate or candidates who may duly join such political party within three days of the publication in the official gazette of the names of the returned candidates.”

It further says that “the consent of the independent candidate so delivered to the Commission shall, in no circumstances, be open to recall or cancellation.”

According to Mr Mehboob, once independents join a party, the defection clause will apply to them as it would apply to any other member. He said once they joined a party within three days, they became a member of that party and the defection clause leading to their de-seating would be applicable.

When asked about the possibility of forming a separate group in the assembly by these independents after winning the elections, he said that since the new group would not have contested the election under a common symbol, they wouldn’t be able to claim reserved seats as well as a share in the standing committees.

The Pildat chief said in the prevailing conditions, independent legislators might fall prey to horse trading unless the party commanded moral control over its affiliates.

He said the PML-N also faced such a situation in the Senate when quite a few of its senators were made ‘independent’ by a very “unfair SC judgement but I don’t think any senator defected”.

Published in Dawn, January 17th, 2024