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P L D 1998 SC 1263

P L D 1998 SC 1263

WUKALA MAHAZ BARAI TAHAFAZ DASTOOR

V/S

FEDERATION OF PAKISTAN

ORDER OF THE COURT

By majority of 6 to 1 it is held that Article 63A of the Constitution is intra vires but by 4 to 2 subject to the following clarifications:

(a) Constitution of Pakistan (1973) Arts. 63A, 66 & 19

(i) That paragraph (a) to be read in conjunction with paragraphs (b) and (c) to Explanation to clause (1) of Article 63A of the Constitution. It must, therefore, follow as a corollary that a member of a House can be disqualified for a breach of party discipline in terms of said paragraph (a) when the alleged breach relates to the matters covered by aforesaid paragraph (b) and (c) to the above Explanation to clause (1) of the aforementioned Article and that the breach complained of occurred within the House.

(x) That the above paragraph (a) to Explanation clause (1) of Article 63A is to be construed in such a way that it should preserve the right of freedom of speech of a member in the House subject to reasonable restrictions as are envisaged in Article 66 read with Article 19 of Constitution.

Whereas by minority view paragraph (a) in the Explanation to clause (1) of Article 63A and clause (6) in the said Article of the Constitution are violative of the fundamental rights and are to be treated as void and unenforceable. (p. 1444) A
Order accordingly.

Per Ajmal Mian C.J

(d) Constitution of Pakistan (1973) Art. 63A

It may be stated that Act XIII of 1962 enacted on or about 15-7-1862 section 8 in the Political Parties Act, 1962 (hereinafter referred to as Act III of 1962), which provided as follows :-

Certain disqualifications for being a member of the National Assembly of the Central or a Provincial Committee of a political party dissolved under subsection (2) of section 6 or who has been convicted under Section shall be disqualified from being elected as a member of the National Assembly or a Provincial Assembly for a period of five years from the date of such dissolution or conviction, as the case may be. (p. 1295) B

(c) Constitution of Pakistan (1973) Art. 63-A

In our view, it is not necessary in the instant case to hold that the basic structure theory is applicable in Pakistan as we are inclined to hold that the impugned Article is not violative of any of the alleged three basic structures highlighted by Dr. A. Basset, namely representative form of Government, Islamic concept of democracy and independence of Judiciary. The impugned Article will bring stability in the polity of the country as it will be instrumental in eradicating cancerous vice of the floor-crossing. It is also in consonance with the tenets of Islam and Sunnah as the same enjoined its believers to honour their comments if the same are not in conflict with the teachings of Islam and Sunnah. We are unable to subscribe to the learned counsel for the petitioner’s submission that paragraph (a) to Explanation to clause (1) of Article 63A rendered a member of the Parliament ineffective or non-entity as he cannot speak anything against the party constitution, code of conduct and declared policies of the party. In our view, paragraphs (a), (b) and (c) to Explanation to clause (1) of Article 63A of the Constitution are to be read together. The basic object of the impugned Article contained in paragraph (b) and (c) to the Explanation to clause (1) thereof is to ensure that a member of the Parliamentary Party should not vote contrary to any direction issued by the by the Parliamentary Party to which he belongs nor he should abstain from voting in the House against the party policy in relating of any bill. The above basic object is not violative of any Constitutional provision or any Constitutional principle. It may be stated that paragraph (a) to the aforesaid Explanation prohibits a member of the Parliament from committing a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies. The breech referred to in this paragraph should be relatable to the objects specified in the paragraph (b) and (c) to the Explanation to clause (1) of the impugned Article if a member is to be disqualified from the membership on the ground of defection. The above view gets support if we were to examine impugned Article 63A in juxtaposition with Article 63A in juxtaposition with Article 63 of the Constitution as the latter Article, inter alia, covers acts/omissions on the part of a member of the Parliament generally committed by him outside the Parliament.

We are unable to agree with the submission of the learned Attorney-General, Ch. Muhammad Farooq and Mr. S. Shrifuddin Pirzada, learned senior counsel for the Federation, that paragraph (a) to Explanation to clause (1) of Article 63A of the Constitution would also include the conduct of a member of the Parliament outside the House. The view, which I am inclined to take is also in for formality with the well-settled principle of interpretation that a penal provision should be construed strictly and its scope should not be extended unless it is so required by the clear language used therein or by necessary intentment. (p.1314) J

A member cannot be disqualified under Article 63A on the ground of his alleged misconduct committed outside the precinct of the Parliament, and for that an action is to be taken according to the party constitution and not under Article 63A which regulates the conduct and behaviour of the members within the House of Parliament. (p 1314) K

(e) Constitution of Pakistan (1973) Art.63A(6)

It was held the Court had the jurisdiction to interfere with the acts performed without jurisdiction, corm non-judice and mala fide. In our view, the above clause (6) of Article 63A does not debar a High Court or this Court from examining an order passed under the above Article in terms of the aforesaid judgment. (p. 1315) M

(f) Constitution of Pakistan (1973) Arts. 63A & 184(3)

Syed Iftikhar Hussain Gilani, learned counsel for the petitioner in Constitution Petition No.25 of 1997, has submitted that the above paragraph (a) exploited It will suffice to observe that if an individual case is brought before us the same will be examined, but at this juncture we cannot assume that the above clause would be exploited or would be misused by the leader of a political party. (p. 1318) Q

(g) Constitution of Pakistan (1973) 63A(1)

There seems to be no conflict between paragraph (a) to Explanation to clause (1) of Article 63A with Article 19 & 66 of the Constitution, as the above paragraph does not expressly provide that a member cannot express his views in exercise of his right under above Article 66 on any matter which is brought before the House. The above paragraph (a) to above Explanation is to be construed in conjunction with Article 66 and 19 and efforts should be made to preserve the right of freedom of speech on the floor of the House subject to reasonable restrictions, without which a Parliamentary form of Government cannot be run effectively. It may be pointed out that freedom of speech in a Parliamentary form of Government, subject to reasonable restriction, is sine qua non; hence the above paragraph (a) cannot be construed in a manner which would defeat the basic feature of the Parliamentary form of Government. (p. 1318) R

(h) Constitution of Pakistan (1973) Art. 63A

The upshot of the above discussion is that the above-impugned Article is not violative of any provision of the Constitution. However, in order to avoid future unnecessary litigation and to provide guideline, we may clarity the following points:

(i) That paragraph (a) is to be read in conjunction with paragraphs (b) and (c) to Explanation to clause (1) of Article 63A of the Constitution. It must, therefore, follow as a corollary that a member of a House can be disqualified for a breach of party discipline in terms of above paragraph (a) when the alleged breach relates to the matters covered by aforesaid paragraphs (b) and (c) to the above Explanation to clause (1) of the aforementioned Article and that the breach complained of, occurred within the House.

(ii) That the above paragraph (a) to Explanation to clause (a) of Article 63A is to be construed in such a way that it should preserve the right of freedom of speech of a member in the House subject to reasonable restrictions as are envisaged in Article 66 read with Article 19 of the Constitution. (p. 1318) S

Per Saiduzzaman Siddiqui, J

(i) Constitution of Pakistan (1973) Art. 63A

I agree with the conclusion of Hon’able Chief Justice that Article 63A inserted through 14th Amendment after Article 63, in the Constitution is a valid Constitutional provision. However, in view of the importance of the issue, I have recorded my separate reasons for the above conclusion. (p. 1320) T

(j) Constitution of Pakistan (1973) Art. 63A

Article 63A has been inserted in the Constitution through the 14th Amendment. The Bill containing the 14th Amendment was passed by the two Houses of Parliament without a vote of dissent on 1-7-1997 and it received the assent of President on 3-7-1997. To understand the background of the passage of the 14th Amendment Bill in the Parliament in its true perspective, it is necessary to state here briefly the history of legislation in the country on the subject of defection and floor-crossing. (p. 1320) U

(k) Constitution of Pakistan (1973) Art.19

The right of freedom of speech and expression guaranteed under Article 19 of the Constitution is not unfettered and unbridled. It is subject to subject to reasonable restriction which may be imposed under the law in the interest of the glory of Islam, the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality in relation to contempt of Court, commission of or incitement to an offence. I have already stated the background leading to the insertion of Article 63A in the Constitution. (p. 1363) Y

(l) Constitution of Pakistan (1973) Arts. 63A(1)

The defection by members of political parties after their election as members of Assemblies led to the dissolution of more than one elected Assemblies in the past. There was strong condemnation by the public of the immoral practice of floor crossing and defection by elected representatives of political parties after their election on party ticket s members of Assemblies. There was consensus amongst the political parties to eradicate the vice from the body politics of the country to restore the confidence of people in the political process. In this back set stringent legislative measures were needed to curb this immoral practice to keep the political process pure and clean. Defection in political parlance means an act of political opportunism to obtain immoral gains and worldly advantages by exploiting one’s representative and political status. However, while enacting laws or introducing amendments in the Constitution with the object of eradicating the vice of defection, the Legislature was not bound to provide the same meaning to the work ‘defection’ as given in dictionary or it is understood in common parlance. The Legislature, therefore, while introducing Article 63A in the Constitution could give its own meaning given in the dictionary or as it is understood commonly. The definition of ‘defection’ provided under the Explanation appended to Article 63A, bears reasonable nexus to its dictionary meaning and as this word is understood in common parlance.

Keeping in view the background of insertion of Article 63A in the Constitution. I have not been able to discover anything objectionable in the meaning assigned to word ‘defection’ in the legislation. The clause (a) describes the breach of party discipline which is explained as breach of Constitution, code of conduct and declared policies of the political party amongst others, as the act of defection. It cannot be denied that a political party functions on the shared belief of its members and their commitments to uphold its Constitution and declared policies. A person when joins a political party and seeks election to the Assembly on the ticket of that party, holds out to the electorate that he is bound by the discipline, code of conduct and declared policies of the party. After his election to the Assembly, if he defies the party constitution or the code of conduct or the declared policies of the party, whether within the Assembly or outside the Assembly, he looses his representative character and the mandate to represent the people who elected him on the basis of his above representation. The view that only such breach of constitution, code of conduct and declared policies of the political party by its elected members, which takes place within the four walls of the Assembly, would be covered by clause (a), which is to be read together with clauses (b) and (c) of the Explanation to Article 63A of the Constitution are independent of each other. While clause (a) covers the acts of an elected member of a political party, both inside and outside the House, clauses (b) and (c) relate to his action inside the House only. The act of defiance by an elected member of a political party of the constitution, code of conduct and declared policies of the party outside Assembly is as much damaging to the image and working of that party as his conduct inside the Assembly. A divided party is looked upon with suspicion by the people and is likely to loose the confidence of its electorate. A member of the political party who, after his election to the Assembly on the ticket of that party, publicly denounces the constitution, code of conduct or declared policy of the political party to which he belongs, cannot claim right to represent that party in the Assembly on any moral, ethical or legal ground. Therefore, in my opinion, no exception could be taken to the provision of clause (a) of the Explanation to Article 63A of the Constitution. The next objection of Mr. Iftikhar Gilani, to the validity of clause (a) to the Explanation is that this clause curtailed the right of speech of such member. A person seeking election on the ticket of a political party agrees to hold fast to the Constitution, code of conduct and declared policies of that party. He cannot claim right to denounce and defy the policies and code of conduct of that party after his election as member of the Assembly on the ticket of that party on any known principle of law or morality. Clause (a) of the Explanation to Article 63A does not take away that right of honest dissent of an elected member of the political party. However, the right of honest dissent cannot be held to include defiance and denunciation of the discipline, code of conduct and declared policies of the party. If an elected member of a political party feels so strongly that he cannot stand by the policies of his party on account of his convictions on those issues, he may shed his representative character which he acquired by getting elected on the ticket of that party, by resigning from his seat and seek a fresh mandate from the electorate on the basis of his conviction. I therefore, find no merit in the contention of Mr. Iftikhar Gilani that clause (a) of the Explanation to Article 63A has the effect of taking away the freedom of speech of an elected member of a political party guaranteed under Article 19 of the Constitution, I find no force in the contention of Mr. Gilani that the provision of clause (a) (ibid) has the effect of taking away the privileges of the elected member of a political party confered by Article 66 of the Constitution. Article 66 guarantees freedom party of speech to members inside the Parliament and provides immunity to the members against legal proceedings in any Court for anything said or any vote given by him in the Parliament. Firstly, the right of freedom of speech mentioned in Article 66 in not an absolute one. Secondly, clause (a) of the Explanation to Article 63A does not, in any manner, take away the immunity of the members from being answerable for anything said or any vote given by him in the Parliament, before any Court. (p. 1363) Z

(m) Constitution of Pakistan (1973) Art. 63A

I have already dealt with in the first part of this argument while considering the effect of clause (a) of the Explanation appended to Article 63A of the Constitution on the right of an elected member of a political party with reference to Article 19 and 66 of the Constitution. In so far the contention of Mr. Abdul Basit that restraints provided under Article 63A of the Constitution are against the concept of polity in Islam., this point too was dealt with by me in the case of Sabir Shah v. Shad Muhammad Khan (supra), and relevant portion dealing with this aspect of the case has already been reproduced in this judgment earlier and I still hold the same view. (p. 1366) CC

(n) Constitution of Pakistan (1973) Art. 63A(6) & 199

Clause (6) of Article 63A of the Constitution has not introduced any new concept. Article 66, which is also in Chapter 2 of Part III, of the Constitution already provides, immunity to the members of the Parliament in respect of anything done or any vote given by him in the Parliament against any proceedings before any Court. Similarly, Article 69 of the Constitution in the same Chapter, makes the officer or member of the Parliament, in whom powers are vested by or under the Constitution for regulating procedure or conduct of business or maintaining the order in the Parliament, immune from the jurisdiction of the Court in respect of exercise of any such power. I, therefore, find nothing new in clause (6) of Article 63A (supra) in providing the exclusion of the jurisdiction of the Supreme Court and High Court from entertaining any legal proceedings in respect of action taken under this Article. I may, however clarify that the bar mentioned in the said Article, does not completely take away the jurisdiction of the Supreme Court or High Court in respect of actions taken under Article 63A (ibid). Despite of the bar provided in clause (6) of Article 63A, the jurisdiction of High Court as well as Supreme Court under Articles 199 of the Constitution will be available in respect of the actions which are coram non judice, mala fide or are without jurisdiction. (p. 1366) DD

(o) Constitution of Pakistan (1973) Art.63A

I agree with the conclusion of my Lord, the learned chief Justice that article 83A of the Constitution is valid Constitutional provision which takes effect accordingly. The two Constitutional petitions are disposed in terms of the above order. (p. 1366) EE

Per Raja Afrasiab Khan, J

(p) Constitution of Pakistan (1973) Arts. 63A, 16, 17, & 19

Now coming to the impugned amendment, I hold the view that it shall help the democratic system to run smoothly and successfully. In the party meetings, all the members are free to discuss their views over the issues which are the subject of such meetings. However, once, after full debates/discussions, a decision is taken by majority of the members, it shall bind them. It may be stated that the party Head has to honour the views of the majority which taking the decision on the crucial issues of national importance. In my view, under the impugned amendment, the party Head has not been permitted to act like a dictator. At any rate final decision is to be taken by the party Head after due compliance of the procedure laid down in the amendment. I, therefore, do not think that the amendment shall, in any way, offend the provisions of Article 16, 17 and 19. Once a mandate is given by the majority of the Member on an issue in a free and conducive atmosphere, it has to be complied with faithfully by all the members. If such a decision is violated, then of course, competent Authority in the political party may take actin against the Member/Members who is/are proved to be guilty of violation of party discipline after hearing them. There is nothing to suggest that such a course shall violate the fundamental right of the members of the political party who are held to been the violators of the party discipline. It may be noticed that rules of democracy cannot be practised/acted upon for the welfare of the people without having complete recourse to discipline which is one of the famous catchwords of Quaid-e-Azam Muhamad Ali Jinnah i.e., Unity, Faith and discipline. On these great sayings which are of utmost important for the whole nation, the founder of Pakistan observed:

“Quaid-i-Azam Muhammad Ali Jinnah referring to a passage in the address of selcome presented by the Divisional Superintendent and officers of the North-West Railway on december 28, 1947 which stated, ‘we beg to assure you tht we shall follow you through sunshine are fire’ said:

‘we are going through fire: the sunshine has yet to come. But I have no doubt that with unity, faith and discipline we will not only remain the fifth largest State in the world but will compare with any nation of the world. Are you prepared to undergo the fire? You must make up your mind now. We must sink individualism and petty jealousies and make up out minds to serve the people with honesty and faithfulness. We are passing through a period of fear, danger and menace. We must have faith, unity and discipline,” (See page 453 of the “Selected Speeches and Statements of the Quaid-I-Azam Muhammad Ali Jinnah” (1911 – 34 and 1947 – 48) by M. Rafique Aszal)

With these observation, I respectfully agree with the view expressed by the Hon’able Chief Justice in the leading judgment. (p. 1423 &1424) KK

Per Irshad Hassan Khan

(q) Constitution of Pakistan (1973) Arts. 63A, 66 & 19

Unfortunately, Members of the Parliament in Pakistan are not lacking behind in this behalf. Thus visualized, a number of important factors have to be kept in mind with reference to the scheme of democracy envisaged by the Constitution and the conditions under which that democracy must operate. It is true that a role to be placed by the Opposition in the Parliamentary form of Government, as envisaged by the Constitution, cannot be minimized. It is also true that a Member of a Political party/parliamentarian must be allowed to exercise his fundamental Right of freedom of speech subject to reasonable restrictions as contemplated by Article 66 read with Art.19 of the Constitution. (pp. 1383) MM

“The strength of the Government.– It is now untrue to say that the most important part of Parliament is the Opposition in the House of Commons. The function of Parliament is not to govern but to criticise. Its criticism, too, is directed not so much towards a fundamental modification of the Government’s policy as towards the education of public opinion. The Government’s majority exists to support the Government. The purpose of the Opposition is to secure a majority against the Government at the next general election, and thus to replace the Government. This does not imply that a Government may not be defeated in the House of Commons. Nor does it imply that even to withdraw, its proposals. These qualifications are important but they do not destroy the truth of the principle that the Government governs and the Opposition criticise Failure to understand this simple principle is one of the causes of the failure of so may of the progeny of the Mother Parliament’s and of the suppression of Parliamentary Government by Dictatorships.” (pp. 1383) NN

“The successful candidate is almost invariable returned to Parliament not because of his personality nor because of his judgment and capacity are alike unknown to the great mass of his constituents. A good candidate can secure a number of votes because he is good; a bad candidate can lose a few because he is bad. Local party organizations, therefore, do their best to secure a candidate of force and, character. But his appeal is an appeal on his party’s policy. He asks his constituents to support the fundamental ideas which his party accepts. His own electioneering is far less important than the impression which his party creates in the minds of the electors. They vote for or against the Government or for or against the party to which he belongs. The “national” speaker who comes into a constituency to urge electors to support the candidate because he supports the party; he would condemn him with equal pleasure if he did not. Many of the posters are prepared and circulated by the Party affiliation. He possesses an ‘Organization’ because the party supporters in the locality-stimulated, if necessary, by the Party Headquarters-believe in the party policy sufficiently strongly to give time and trouble to its work.” (pp. 1384) OO

(r) Constitution of Pakistan (1973) Art. 63A

But I specifically observed, in my judgment that defection is like a contagious disease and needs proper treatment and we are also not inclined to affix the seal of approval to an act of defection. (pp. 1386) RR

The description given by Sir Ivor Jennings applies with great force to Pakistan. Clearly, the candidates elected on a party ticket represent to the electors that he will support to the party and its general policies and programmes and that he will abide by the decisions of the party once such decisions are take. Thus, visualized, the right of dissent is greatly restrained otherwise the policies of the party cannot be carried on. A Member of the Parliament cannot demand that his views ought to be accepted before decisions are taken. He can, no doubt participate in the proceedings and freely express his point of view. Clearly, the party voting discipline is not, per se, a negation of Intra-arty Democracy. The policies/programmers of the party when come to the Parliament for implementation through law-making, should first be discussed and deliberated with democratic openness within the party structure but once a party decision is taken, it must be supported even by that member of the Party to the advantage of the Opposition, which may lead to instability of the Government. (pp. 1385) PP

A Parliament-dependent Government implies party-supported Government: a support that in turn requires voting discipline along the party lines. Abstention from voting in the House against the party policy in relation to any Bill or voting contrary to any direction issued by the Parliamentary party to which a Member belongs, must equate with defection. (p. 1386) QQ

A party Head has become a complainant and the Judge in the case, therefore, it is violative of the principles of natural justice, it wold suffice to say that the scheme visualized under the impugned Article is totally akin to the establishment of Supreme Judicial Council for inquiring into misconduct of any Judge. Article 209 of the Constitution. (pp. 1387) SS

The plea that the impugned Article is violative of the principles of natural justice cannot be held to be supported by the provisions of the Constitution itself. (p. 1388) TT

Provisions of the Constitution of Pakistan, hereunder discussion, have to be regulated and interpreted as an organic whole alongside the Constitution of Islamic Republic of Pakistan, 1973. (pp. 1388) UU

The upshot of the whole discussion is that I respectfully agree with the learned Chief Justice that the petitions are maintainable and the impugned Article is not violative of any provision of the Constitution. (pp. 1394) EEE

(s) Constitution of Pakistan (1973) Arts. 63A & 2A

The learned Chief Justice in the proposed judgment, which I respectfully follow. Viewed in this perspective as well, the impugned Article does not violate any of the Constitutional provisions or the principles of democracy and freedom as enunciated by Islam and the Constitution. (p. 1302) XX

(t) Constitution of Pakistan (1973) Arts. 63A(1) & 184(3)

As regards paragraph 18(ii) of the proposed judgment by the learned chief Justice, I am in full agreement with the same. I may, however, add that eventuality envisaged therein shall be attended to whenever an occasion arises in that regard at the instance of an aggrieved party in appropriate proceedings. (p. 1394) DDD

Per Irshad Hasan Khan, J. not agreeing with Ajmal Mian, C.J. (minority view)

I may say with utmost respect that I am unable to subscribe to the view taken by the learned Chief Justice vide paragraph 18(1) of the proposed judgment that the breach of party discipline in terms of sub-clause (a) to the explanation to clause (1) of Article 63A of the Constitution, is applicable only to the alleged breach of the party discipline taking place within the House. I am of the view that all activities and actions which have a bearing on a purpose behind the defection would also fall within the ambit of sub-clause (a) to the Explanation to clause (1) of the impugned Article, inasmuch as, sub-clause (a) to the Explanation to clause (1) of the impugned Article is a separate discipline and has no nexus apparently with the remaining sub-clause i.e (b) and )c). The latter two sub-clauses specifically deal with those facets of the action/activity which take place at the floor of the House, therefore, sub-clause (a) has to have a separate existence from sub-clauses (b) and (c) thereof. Clearly, if discipline is to be enforced to prevent defection only in the House then it can be frustrated by actions and activities of a Member of the House who may indulge in actions and activities outside the House, which shall have repercussions on the proceedings and/or voting in the House. It is trite law that unless a different intention is apparent, the enumeration of specified matters in a Constitutional provision is usually construed as an exclusion of matters not so enumerated. (p. 1393) CCC

Constitutional Law, Corpus Juris Secundum, S.25 Ref.

Per Mamoon Kazi, J

(u) Constitution of Pakistan (1973) Art.63A

It is a common ground between the parties that floor crossing by members of Parliamentary parties had come to be so menacingly engrained in our Political system that shifting of loyalties by members had become a matter of common occurrence. Therefore, there was a growing public demand for bringing legislation to effectively control this practice. It was in such background that the said legislation was passed. (p. 1426) FFF

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