Clip_116Workers of the PTI in KP are angry because Rabia Basri was not given a ticket for the Senate. The PTI has fielded Rabia Basri, who is the party’s Peshawar district president of the women’s wing, as the covering candidate for the Senate polls. The party leadership has awarded the main ticket to Samina Abid, a relatively newcomer in the PTI. She is stated to be the wife of the chief secretary of Azad Kashmir and the sister of a former member of the National Assembly from Mansehra. The award of ticket to Samina Abid came as a surprise as she wasn’t initially in the run and was unfamiliar to PTI workers, particularly in Khyber Pakhtunkhwa. Some months ago she had made some appearances in Peshawar in a bid to find support for becoming the provincial president of the PTI women’s wing. Some PTI workers said Samina Abid’s family was on good terms with Chief Minister Pervez Khattak. The PTI MNA Nafisa Khattak, who is a relative of Pervez Khattak, was also said to be a firm supporter of Samina Abid.  The PTI had won all four National Assembly and 10 out of the 11 seats in the provincial assembly from Peshawar district in the May 2013 general election but it didn’t get any of the reserved seats for women in the national and provincial legislatures. Therefore, the workers wanted Peshawar to be given representation in the Senate.

The constitutional definition of defection does not include casting of vote by lawmakers against their own parties in the Senate election, which leaves the polls for the Upper House of the Parliament open to horse-trading.

Clip_20Defection results in lawmakers’ disqualification, under the Constitution, but voting against the party candidates in the Senate election does not constitute defection. 

Experts have divided opinion about the application of defection law to lawmakers violating party direction in the Senate polls. But most of them believed lawmakers could get away with disqualification for not casting vote to the party candidates.

The article 63A of the Constitution provides for disqualification of lawmakers if they go against the party direction or abstain from voting in the assemblies. It also applies to lawmakers who would change party.

However, this article is completely silent about the Senate polls in which lawmakers elect senators, worrying parties that lack confidence to trust their lawmakers. The only action the parties can take is to initiate disciplinary action against the cheating legislators.

Legal action for disqualification may be initiated under article 63A,

“If a member of a parliamentary party composed of a single political party in a House: 

(a) resigns from membership of his political party or joins another parliamentary party; or 

(b) votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, in relation to: 

(i) election of the prime minister or the chief minister; or 

(ii) a vote of confidence or a vote of no-confidence; or 

(iii) a money bill or a constitution (amendment) bill.”

Sikandar Sherpao, parliamentary leader of the Qaumi Watan Party, argued article 63A promised no punishment for disloyal lawmakers. “Senate election is held through secret ballot and it cannot be determined as to who voted for whom,” he said. “Secret ballot is again the reason that this article does not cover the election of the speaker and deputy speaker,” he said, broadening his argument.

Umar Farooq, a leading lawyer and constitutional expert, believed the Constitution did not place any bar on lawmakers to vote against the party candidates in the Senate polls. “They are independent in their decision,” he said. To him, it was already hard to prove that a lawmaker voted against the party because of the secret ballot.

“The bargaining takes place in secret and the money is channeled through foreign countries. By the way, lawmakers think this is the chance for them to earn money after spending RS20-25 million in their election,” he remarked.

Some constitutional experts disagree with them. They say the defection law would apply to the lawmakers going against the party in the Senate election.

Qazi Anwar, a prominent lawyer, said if a lawmaker defied party direction it would make a case for his/her disqualification. He said the article 63A should be read with articles 62 and 63.

Article 62 sets qualifications for members of the assemblies and article 63 lists conditions that could lead to the disqualification of lawmakers. However, they are of general nature. Article 63A is specific about defection. Even if a lawmaker fulfils all the conditions listed in article 62, including honesty and righteousness, he/she could be disqualified under article 63A for resigning or changing the party.

Muhammad Essa Khan, another constitutional expert and president of the Peshawar High Court Bar Association, admitted the defection article had loopholes and the lawmakers violating party direction in Senate election would be able to get away with the punishment.

“This article is silent on the Senate election and it’s up to the courts to make its interpretation. But if you are asking for my interpretation, I would say it applies in the Senate election as well,” he said. “If lawmakers are made to obey the party in the important events of electing the prime minister or the chief minister, they are not on their own in the Senate election,” he stated, arguing the spirit of the defection law required lawmakers to follow the party line.

He said lawmakers could voice their disapproval in party meetings but they must not be allowed to vote against the party direction. He said if they were tolerated to vote against the parties, the political parties would lose their importance. He worried it would give lawmakers a license to sell their votes in the Senate election.

The political parties share the fears Essa Khan voiced. Imran Khan, PTI chief, has even proposed show of hand instead of secret ballot in the Senate election, but it’s impossible without a constitutional amendment.

“If the past is any guide, horse-trading cannot be ruled out,” Sikandar Sherpao, who is also provincial chief of his party, worried. “We needed to stop it and electing senators unopposed was one available solution but I see thin chances of it,” he said with disappointment, hurrying up to say he had not surrendered yet.