Supreme Court lawyer Hafiz Ahsaan Ahmad Khokhar Tuesday said though the Supreme Court presently exercised advisory jurisdiction under Article 186 of the Constitution on the presidential reference, it would be binding on all state institutions as per plain language of Article 189 of the Constitution and would have certain constitutional effects on the country’s political situation. In a statement, he said the judgment would not affect the present constitutional and political situation emerging after the vote of no- confidence at the center in April 2022 but it would have a big legal effect and consequences for the constitutional and political position that emerged after the recent election of the Punjab chief minister. Khokhar said the language of Article 63A of the Constitution regarding defection of a member of assembly was very much clear with the legal outcome and consequences prescribed in Article 63 (1) (4) that upon receipt of a declaration from party head, the Election Commission would confirm the declaration and the member referred to in clause (1) shall cease to be a member of the House and his seat shall become vacant. However, the constitutional expert said a new innovative interpretation had been given first time under Article 186 of the Constitution by the Supreme Court on a “Presidential Reference’ with reference to Article 63 (1) of the Constitution on a majority judgment by three to two that Article 63A to be read with Article 62 of the Constitution withfurther elaboration that 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 and must be disregarded. However, according to constitutional expert, the defection of a member or the effect of counting of vote of a member of assembly would not take place until it was finally determined by a legal process given under Article 63A of the Constitution. Khokhar said the Supreme Court however had not determined and interpreted the penalty presently mentioned in Article 63A (4) of the Constitution, which is the member referred to in clause (1) of 63A of Constitution shall cease to be a member of the House and his seat shall become vacant, but referred the quantum of punishment for disqualification of a member of Assembly to the Parliament for new legislation to control the horse trading in country for future. The recent opinion of Supreme Court according to constitutional expert would have long effects both on constitutional and political situation of Pakistan in future. According the constitutional expert, there would be a strong legal possibility that votes of dissident MPAs of Punjab Assembly against whom references are pending with the Election Commission of Pakistan would not be counted and disregarded as per recent judgment of Supreme Court. Resultantly, it would affect the results of the recent election of chief minister Punjab, which constitutionally required majority number of 186 in the Punjab Assembly independent from the counting of defection members and would as well ultimately affect the status of election of the chief minister and the government.
Khokhar said the Supreme Court however had not determined and interpreted the penalty presently mentioned in Article 63A (4) of the Constitution, which is the member referred to in clause (1) of 63A of Constitution shall cease to be a member of the House and his seat shall become vacant, but referred the quantum of punishment for disqualification of a member of Assembly to the Parliament for new legislation to control the horse trading in country for future. The recent opinion of Supreme Court according to constitutional expert would have long effects both on constitutional and political situation of Pakistan in future.
According the constitutional expert, there would be a strong legal possibility that votes of dissident MPAs of Punjab Assembly against whom references are pending with the Election Commission of Pakistan would not be counted and disregarded as per recent judgment of Supreme Court. Resultantly, it would affect the results of the recent election of chief minister Punjab, which constitutionally required majority number of 186 in the Punjab Assembly independent from the counting of defection members and would as well ultimately affect the status of election of the chief minister and the government. Khokhar said if no one in the assembly (National Assembly-Provincial Assembly) gets the majority required under the Constitution either for prime minister or chief minister, the constitutional result would be that there would be forced dissolution of the respective assembly either by president under Article 58(2) of the Constitution for the National Assembly or by the governor under Article 105(5) of the Constitution for the provincial assembly and fresh election would take place in ninety days.
