INAYAT ELAHI KHAN, J.--The Constitutional validity and legality of Section 8-B of the Political Parties Act III of 1962 which was introduced by the Political Parties (Amendment) Act XXII of 1985 has been called in question through this Petition. The said provision reads as under:-- "8-B.--(1) If a member of a House,--
(a) having been elected as such as a candidate or nominee of a political party, or
(b) having been elected as such otherwise than as a candidate or nominee of a political party and having become a member of a political party after such election, defects or withdraws himself from the political party he shall, from the date of such defection or withdrawal, be disqualified from being a member of the House for the un-expired period of his term as such member, unless he has been re-elected at a bye7election held after his disqualification.
(2) If any question arises whether a member of a House has become disqualified under subsection
(1) from being a member, the question shall, on a reference by the Leader of the Parliamentary party concerned, be determined by the Election Commission.
(3) An appeal against a decision of the Election Commission under subsection (2) shall lie to the Supreme Court, within thirty days of the decision.
Ex In anation.--1n this section, `House' means a House of the Majlis-e--Shoora (Parliament) and includes a Provincial Assembly."
2. The vires of the aforesaid provision is assailed principally on the ground that this section is ultra vires the Constitutional provisions as contained in Articles 17(2), 19, 25, 63, 66 and 113 of the Constitution of Pakistan, 1973. It is also contended on behalf of the petitioner that the provision of section 8-B of the Act is not applicable to the petitioner since he had not defected or withdrawn from any political party and while continuing to remain a member of Islami Jamhoori Itehad he had only joined the Coalition Government as a Minister on the condition that their alliance shall remain confined to the promotion of Islamic Ideology and service of poor people of the N: W.F.P.
That the petitioner still continues to be a member of Islami Jamhoori Itehad since no disciplinary action has been taken against him nor any show-cause notice was issued to him regarding th6 alleged defection/withdrawal from the said group of political parties. It is contended that even otherwise the provision of section 8-B of the Act under which a Reference had been made by Humayun Saifullah Khan, M.P.A. (Respondent 3) before the Election Commission of Pakistan (Respondent 2) is ultra vires the Constitutional provisions referred to above. Article 17(1) of the Constitution provides that every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan.
It is contended that the right to form or be a member of a political party. Cannot be abridged through ordinary legislative measure. Article 17(2) being a special provision is not governed by any consideration contained in Article 17(1) of the Constitution which covers the right to form associations or unions in general. The defection clause introduced by Section 8-B of the Political Parties Act imposes restriction not provided for by Article 17(2) of the Constitution. It was not the intention of the Constitution to disqualify an elected member on any ground other than those relatable to sovereignty or integrity of Pakistan. The right to freedom of speech and expression guaranteed under Article 19 of the Constitution is a fundamental right which can be subjected to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality or incitement to or commission of an offence. Article 66 of the Constitution relates to the privileges of the members of the Parliament which provision read with Article 127 would also be applicable to Provincial Assembly, provides that subject to the Constitution and to the rules of procedure there shall be freedom of speech in Parliament and no member shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in Parliament. It is contended that right to vote is included in the freedom of expression as it is one of the modes of communicating one's idea or feeling to others. But under the impugned legislation a member is not free to speak or to vote according to the dictates of his conscience and as such the member who in addition to his fundamental rights of freedom of speech and expression as a citizen and also as a member of the House entitled to the privileges of Article 66 of the Constitution, is being denied the exercise of those rights. Thus, the restriction imposed by the impugned provisions could not be termed as reasonable. The impugned provision of section 8-B of the Act is also stated to be discriminatory and thus violative of the equality clause contained in Article 25 of the: Constitution as all persons having been elected to the House, become members of the same class, subject to the same rights and privileges, irrespective of party affiliations, being similarly situated they are required to be treated alike. A person elected as an independent member is not disqualified by joining a political party in the House. He, however, stands disqualified if he leaves a political party and reverts to his original position of an independent member. There is no valid basis for attaching disqualification to a person who wins the election as an independent candidate but subsequently joins and leaves a political party. It is also contended that according to Article 63(2) of the Constitution any question of disqualification is to be decided by the Chief Election Commissioner on a Reference made by the Speaker or the Chairman of the House. But by subsection (2) of section 8-B of the Act, a disqualification on account of defection or withdrawal is to be referred by the leader of the parliamentary party concerned, for determination by the Election Commission. In this way, the Constitutional requirement of referring the question of disqualification of a member through the Speaker has been dispensed with and instead a reference is to be made by the leader of the parliamentary party concerned to the Election Commission of Pakistan instead of the Chief Election Commissioner. Thus the impugned legislation being in conflict with the Constitutional provisions is void and ultra vires the provisions contained in Article 63(2) of the Constitution. It is also argued that the impugned provision curtails the petitioner's right to withdraw his membership of the political party to which he belongs and thus it restricts his freedom of dissociation which is an integral part of the freedom of association guaranteed under the Constitution. It is urged that the impugned legislation deprives a member of his conscience in the name of party discipline. A political party may bring forward a most undemocratic measure and yet the member' would be obliged to vote for it against his will. The contention is that no ordinary law enacted by the legislature can override the Constitutional provision and all such ordinary laws which are inconsistent with the Constitutional provisions cannot be upheld. Any restriction which penalizes a member for exercising his Constitutional privileges cannot be held to be reasonable. The direct consequence of the impugned enactment is to curb and put unreasonable restrictions on the exercise of the fundamental rights guaranteed under the Constitution. It is also contended on behalf of the petitioner that the right of dissent is essential in a democracy and any anti-defection law which does not take into account the right of conscious dissent would be unconstitutional.
Under the impugned enactment a member is disqualified for being a member of the Assembly if he votes or abstains from voting in such a House against the direction issued by the political party.
This provision, therefore, assumes control over the minds of the members and thus impinges upon their fundamental right to act freely according to the dictate of their conscience and this provision, therefore, causes great harm to the functioning of parliamentary democracy. Thus, the validity and constitutionality of this restriction is to be examined for the purpose of determining whether such a disqualification could have been imposed by ordinary legislation or by amendment of the Constitution. This is so because the right to form an association or be a member of a political party is a Constitutional right. The aforesaid contentions are not without force. The learned Attorney- General, however, vehemently argued that the impugned section has enacted a salutary rule with a view to safeguarding against evil of floor-crossing because defections generally take place not because of genuine reasons of one's conscience but because of personal aggrandizement and often with ulterior motives. It is contended that the object and purpose of the impugned section is to curb the evil of political defections which are induced by greed for power and other forms of corruption. It is clear that the impugned reglislation was intended to deal with this evil with a view to promote smooth running of parliamentary democracy and representative Government. It is also contended by the learned Attorney-General that political defection, leaving one political party and joining another, has become the order of the day and posed a grave challenge to successful working of democratic system. Thus, it is prayed that instead of deciding upon the Constitutional validity of section 8-B of the Political Parties Act the writ petition may be disposed of on other preliminary points.-The learned Attorney-General raised the following contentions. Firstly, that Humayun Saifullah Khan (respondent 3) was not competent to make reference under section 8-B of the Political Parties Act because .He was the parliamentary leader of a group of political parties and not a single party and section 8-B does not contemplate a reference by the parliamentary leader of a group or alliance of political parties. Secondly, that out of twenty members of Muslim League in the Assembly eleven had joined the party in power hence there was no defection or withdrawal from a political party within the meaning of section 8-B of the Act because it was a case of joining the ruling party on a mass scale. Thirdly, that under the relevant provision the defection or withdrawal is from a political party and not from a group or combination of parties.
Islami Jamhoori Itehad is an alliance of political parties, each party having its own ideology, manifesto and programme. The mere fact that Islami Jamhoori Itehad was allotted one election symbol would not convert it into a single political party for the purposes of section 8-B of the Act under which. Reference is to be made to the Election Commission only by the leader of the political party concerned and not by the leader of an alliance or group of political parties. Reference is made to Rule 9(2) of the Representation of the People (Conduct of Election) Rules, 1977 which provides that the Commission may allot any one of the symbols specified in sub-rule (1) to any political party or a combination of two or more political parties who have agreed to put up joint candidates for election on an application made by it in this behalf. The contention is that even if a single election symbol was allotted to a combination of political parties i.e. Islami Jamhoori Itehad, it would not become a single political party within the meaning of section 8-B of the Act because each component party still retained its own identity, programme and manifesto. It is also contended that Humayun Saifullah Khan (respondent 3) who made the reference against the petitioner to the Election Commission of Pakistan was not the leader of the parliamentary party concerned at the relevant time And even if he was the leader of the parliamentary party in opposition he no longer remained so after Arbab Mohammad Jehangir Khan M.P.A. Became the leader of the Opposition in the Assembly. The contentions raised are not without force.
3. The learned counsel for the petitioner placed on file Exh.HC/1 copy of the letter addressed by the Secretary, Provincial Assembly of N.-W.F.P. To the petitioner mentioning that no documents were available in the Secretariat of the Provincial Assembly showing Humayun Saifullah Khan M.PA.
(respondent 3) as a leader of the parliamentary party of Islami Jamhoori Itehad. A copy of the notification dated 8-8-1989 under the signature of the Secretary, Provincial Assembly of N.W.F.P. Is also placed on the file as Exh.HC/2 notifying that Arbab Mohammad Jehangir Khan M.PA. Has been appointed as the leader of the opposition by the Opposition Coalition Party on 28th June, 1989 and is entitled to all facilities provided under section 3-A of the Provincial Assembly of N.-W.F.P. (Salaries and Allowances of Members) (Amendment) Act, 1989. In another letter addressed to the Speaker of the Provincial Assembly by Humayun Saifullah Khan and Begum Nasim Wali Khan M.PAs. It was asserted that Arbab Mohammad Jehangir Khan was legally qualified to be appointed as leader of the Opposition by the political parties in the opposition with a further request that the notification in respect of the appointment of Arbab Mohammad Jehangir Khan as leader of the Opposition m the Provincial Assembly be . Allowed to continue. Copy of the letter placed on the file is Exh.HC/3. Copy of the order of the Speaker of the Provincial Assembly, dated 28th June, 1989 Exh.HC/4 (in urdu) shows that in view of the communication on behalf of Islami Jamhoori Itehad and National Awami Party addressed to him, Arbab Mohammad Jehangir Khan was recognized as a leader of the Opposition in the Provincial Assembly. From the above facts it is more than clear that the contention raised by the learned Attorney-General is not without force that respondent 3 ceased to be the leader of the Parliamentary party after the election of Arbab Mohammad Jehangir Khan as Leader of the Combined Opposition Group in the Assembly, with the result that the reference filed by respondent 3 before the Election Commission of Pakistan had become invalid and incompetent in law.
4. The learned counsel for respondent 3, however, argued that Humayun Saifullah Khan (respondent 3) was the Parliamentary leader of Islami Jamhoori Itehad and various political parties in Opposition appointed Arbab Mohammad Jehangir Khan M.P.A. As a combined leader of Opposition in the House; that every political party can have a Parliamentary leader and the largest opposition party is entitled to choose the leader of Opposition; that Islami Jamhoori Itehad is a single political party having its own manifesto and the Constitution. It also contested the election under one election symbol hence it could not be termed as a group of political parties. This argument would carry no force when the learned counsel could not refute that Islami Jamhoori Itehad remained an alliance of different political parties. Each component party retaining its own identity with a separate programme and manifesto. The learned counsel also prayed that it would be appropriate that the questions agitated by the learned Attorney-General may be left for decision by the Election Commission of Pakistan because they are extraneous to the questions raised in the writ petition. However, it is contended on behalf of the petitioner that when the Court is seized of the matter in its Constitutional jurisdiction, all ancillary and incidental questions become open to examination including interpretation and applicability of section 8-B of the Act to the facts of the case. The learned Attorney-General in support of his contention that the aforesaid questions can be determined by the Court contended that in spite of the fact that the jurisdiction of the Superior Courts was curtailed by the Jurisdiction of Courts (Removal of Doubts) Order, 1969 it was observed in Asma Jilani v. Government of the Punjab (PLD 1972 SC 139) that:-- "Learned Attorney-General does not seriously dispute the correctness of the contention that `judicial power' is different from `jurisdiction' and so far as judicial power is concerned it must exist in Courts as long as the Courts are there. In fact, he has been bold enough, and I admire him for his boldness, in characterising these provisions of the Presidential Order No.3 of 1969, which seek to take away the judicial power itself as `absurdities'. He frankly concedes that the Courts have and must have the power to determine all questions of their own jurisdiction. It is a proposition so well- settled that no one can challenge it. The learned Attorney-General has, however, sought to contend that where there is a written Constitution the Courts are themselves creatures of the Constitution and have only such jurisdictions as the Constitution chooses to confer upon then. I have no cavil with this proposition, as I have myself in several cases indicated, that the Constitution can confer or restrict the jurisdiction of even superior Courts but this is not the same thing as saying that it can also restrict or curtail the judicial power, because that in effect would be denying to the Court the very function for which it exists, i.e. To decide a controversy even if it relates to its own jurisdiction."
Reliance is placed by the learned counsel for the petitioner on Fazlul Quader Chowdhry v.
Mohammad Abdul Haque (PLD 1963 SC 486) wherein it was observed:-- "The jurisdiction of the Election Commissioner was created in order to secure in a summary fashion the decision of the question whether a person has the right to vote in the Assembly and that this summary decision was always subject to the existing jurisdiction of the Courts. If there was no provision for such summary decision the Speaker would have had to decide himself whether a person had or had not the right to vote when he offered his vote in the Assembly and this decision would be subject to the decision of the Civil Court. For reasons best known to himself the draftsman of the Constitution has handed over this function to the Election Commissioner, but his decisions remain subject to the jurisdiction of the Civil Court apart from the jurisdiction which the High Court has under Article 98." Reference is also made to the following observations in the State v. Zia--ur- Rahman and others PLD 1973 SC 49:-- "There is a distinction between `judicial power' and `jurisdiction' of Courts. In a system where there is a trichotomy of sovereign powers, then ex necessitate rei from the very nature of things the judicial power must be vested in the judiciary. `Judicial power' has been defined in the Corpus Juris Secundum, Vol. XVI, para.144, as follows:-- `The judiciary or judicial department is an independent and equal co--ordinate branch of Government, and is that branch thereof which is intended to interpret, construe, and apply the law, or that department of Government which is charged with the declaration of what the law is, and its construction, so far as it is written law."
5. In view of what has been stated above it was rightly urged by the learned Attorney-General that the alleged defection or withdrawal on the part of the petitioner from Islami Jamhoori Itehad is not covered by the provision of Section 8-B of the Political Parties Act. Further, the reference under section 8-B of the Act even if competently made by Humayun Saifullah Khan (respondent 3) before the Election Commission of Pakistan became invalid and incompetent in law when Arbab Mohammad Jehangir Khan was appointed as the Leader of the Opposition in the Assembly.
6. For the aforesaid reasons and without determining the question of the vires of section 8-B of the Political Parties Act, 1962, this writ petition is accepted I to the extent that the reference under section 8-B of the Political Parties Act filed by Humayun Saifullah Khan (respondent 3) before the Election Commission of P~ Pakistan (respondent 2) is declared to be invalid and incompetent in law. The respondent 3 is also restrained from proceeding with the reference in question before respondent 2. No order as to costs.