I am utterly unable to understand how the vote (being cast contrary to the direction of the Parliamentary Party in a House), on the basis of which he would be proceeded against for defection, would not be counted in the absence of an express provision of the Constitution,” said the judge. For this, I, with respect, do not agree with the majority opinion that the vote of any member (including a deemed member) of a Parliamentary Party in a House 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, and this is so regardless of whether the Party Head, subsequent to such vote, proceeds to take, or refrains from taking, an action that would result in a declaration of defection. Such a right implies right to remain neutral as well. “Right to vote means right to exercise the right in favour of or against the motion or resolution. On this Justice Miankhel explained that “voting is a formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question”. On the question of excluding a lawmaker’s vote, the judge wrote that the president’s lawyer in the hearings “forcefully asserted” that a member who engages in a “constitutionally prohibited and morally reprehensible act of defection he cannot claim a vested right to have his vote counted and given equal weightage, and as such his vote should not be counted”. ‘Blunders in legislation must be corrected legislature’ None of the organs of the State can encroach upon the field of the others,” said the judge. The legislature is assigned the task of law-making, the executive to execute such law and the judiciary to interpret the laws. “It is also to be borne in mind that Constitution envisages the trichotomy of powers amongst three organs of the state, namely the legislature, executive and the judiciary. The judge further added that Article 63A “provides penal consequences of defection”, adding that a member cannot be declared disqualified for life “merely through the process of interpretation as proposed or expected by the president”.
“Moreover, the argument on behalf of the President that a robust, purpose-oriented and meaningful interpretation of Article 63A which visualises this provision as prophylactic enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralising the effects of the vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct is not tenable under the law and is overruled, being misconceived,” said Justice Miankhel. On the first question, the judge ruled that the presumption that a lawmaker be “dishonest and has committed khyanat for some monetary gain or material consideration” to vote against his party’s directives in a vote of no-confidence motion “would be destructive of the intention of the Constitution makers”. MPs cannot be disqualified for life through president’s proposed interpretation The judge also shared that he kept on waiting for Chief Justice Umar Ata Bandial, Justice Ijaz ul Ahsan, and Justice Munib Akhtar to share their majority judgment on the presidential reference seeking the interpretation of Article 63(A) of the Constitution but decided to release his dissenting note as he was set to retire on July 13. Once again, it was for the Constitution-makers to remove this "cancerous tumour through a surgical operation", Justice Miankhel wrote in his 17-page dissenting note. “The argument that 'defection and horse-trading were like cancer, so they must be dealt with with an iron hand', I may agree to a certain extent with this proposition but this menace could not be curbed by the stroke of my pen," he said. ISLAMABAD: In his dissenting note, Justice Mazhar Alam Khan Miankhel has said that he may agree to an extent that "defection was like cancer that needed to be fixed in society" but added that it was up to the “constitution-makers to remove that cancer through a surgical operation,” not his pen. Judge saysArticle 63A's language is “very plain and simple” therefore, it did not need interpretation.Justice Miankhel was one of two judges out of five who had rejected president’s reference.Justice Mazhar Alam Khan Miankhel saysMPs cannot be declared disqualified for life just because president expects it.
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