Article 63-A of the constitution and disqualification of member national assembly on defection

Speaker of National Assembly has no power to disqualify or stop defection of any member of national assembly under the article 63-A of the constitution 

PTI is facing the serious possibility of defections on the issue of vote of no-confidence against Prime Minister. PTI has come up with the strategy to keep its members away from the proceedings of national assembly on the day of voting on no-confidence motion. The PTI leaders are openly threatening the ruling party MNAs with disqualification in case anyone violates the party whip.

The PTI ministers are giving the impression that National Assembly Speaker Asad Qaiser has the power to disqualify members over floor-crossing under Article63-A of the constitution. But speaker national assembly has no power to disqualify any member of the national assembly on the grounds of defection. Under the Article 63-A of the Constitution, titled “disqualification on grounds of defection” shows that the speaker acts only as a post office in the whole process and the Election Commission of Pakistan (ECP) holds the final authority to make a decision on the matter.

Moreover, the process of de-seating a member takes at least a month as the ECP has 30 days to decide the matter after receiving a reference from the speaker. And then, the member will have 30 days to file an appeal before the Supreme Court, which will be required to decide it in 90 days.

Besides this, before sending a reference to the speaker, the party head is also required to issue a show cause notice to the member to provide him an opportunity to explain his position.

Supreme Court judgment in Ayesha Gulalai disqualification case made it clear that party leader cannot proceed against a member parliament without giving her/him opportunity to defend.  

The SC judgement reads that "the Election Commission found and we agree that the respondent was condemned unheard which is clearly violative of proviso to Article 63A of the Constitution which obligates the party head to provide any member against whom a declaration is sought to be given an opportunity to show cause why such declaration may not be issued against him.

It is clear and obvious from the record that the respondent was not heard and the stance taken by her in her response to the show cause was not considered which violated her legal and constitutional rights."

According to the top legal and constitutional minds of the country and parliamentary experts, the disqualification clause will be applicable only after that member casts their vote and, even after disqualification, their vote will remain valid.

 Experts also believe that the PTI’s decision to stop its members from attending the session or casting their votes is against parliamentary and democratic norms, as voting is a fundamental right of all members, especially if they do it knowing that they can face disqualification.

Sources said both the PPP and the PML-N had decided to accept those individuals, who had quit the parties just before the 2018 general elections, back into the fold. There are reports that the two parties have already made commitments with some PTI members that they will get tickets in the next elections as a reward for their “sacrifice.”

Article 63-A had clearly defined the modus operandi against dissidents within any political party. He said no political party could bar entry of its lawmakers to the parliament.

Supreme Court Bar Association (SCBA) President Muhammad Ahsan Bhoon in a statement said that Article 95(2) of the Constitution clearly provided that the National Assembly speaker was constitutionally bound to summon the house after the expiry of three days and not later than seven days, after the receipt of any such requisition.

He warned that “any undue postponement in calling of the meeting of National Assembly or any deviation from the Constitution could provide the opportunity to non-political forces or non-state actors to initiate non-political campaign, the responsibility of which shall be upon the ruling political elite of the country.”

Article 63-A, disqualification on grounds of defection

According to Article 63-A titled “Disqualification on grounds of defection”, a member of “a parliamentary party composed of a single political party in a House” faces disqualification if he “resigns from membership of his political party or joins another parliamentary party; votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, in relation to election of the prime minister or the chief minister; a vote of confidence or a vote of no-confidence; or a money bill or a constitution amendment bill.

The member “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 (CEC) and shall similarly forward a copy thereof to the member concerned: provided that before making the declaration, the party head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him.”

“Upon receipt of the declaration under clause (1), the presiding officer of the House shall within two days refer, and in case he fails to do so it shall be deemed that he has referred, the declaration to the CEC who shall lay the declaration before the ECP for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the CEC.

Article 63(4) states “where the ECP confirms the declaration, the member referred to in clause (1) shall cease to be a member of the House and his seat shall become vacant.

However, according to the next provision, “any party aggrieved by the decision of the ECP may, within thirty days, prefer an appeal to the Supreme Court which shall decide the matter within ninety days from the date of the filing of the appeal.

                                                                          Khalid Bhatti