Rewriting defection | Dawn

This article was published in Dawn on May 26, 2022 and is available at the following link

WITH the Supreme Court order of May 17 — issued in response to a presidential reference seeking clarifications on Article 63-A or the defection of legislators from their parliamentary party — a new, game-changing chapter has been added to the parliamentary history of Pakistan.

When the original 1973 Constitution was framed, no specific article was included to address the question of defection and, therefore, no penalty for defection was provided. The only precaution that was temporarily built into the Constitution at that time to guard against political instability in the fragile conditions of transition from martial law to a democratic era was for votes of defecting legislators to be disregarded or not counted in a no-confidence motion for 10 years from the date of commencement of the Constitution, or the holding of the second general election to the National Assembly, whichever occurred later.

In fact, there was another condition for disregarding the votes of defecting legislators: the non-counting provision was to apply only if a majority of members of a parliamentary party cast their votes against the passing of the no-confidence motion. This original provision indicates that the framers of the Constitution considered a vote of no-confidence to be an important part of parliamentary democracy, and this is the reason why no provision to penalise the defecting members — not even de-seating them — was made part of the Constitution.

The original version of the 1973 Constitution also recognised the principle that if a majority of the members of a parliamentary party favoured a no-confidence motion against their own party leader and the prime minister, the votes of the defecting members would not be disregarded and nothing could obstruct the removal of the prime minister in that case.

No specific article was included to address the question of defection in the original 1973 Constitution.

It was 24 years later that the stringent, anti-defection Article 63-A was introduced in the Constitution through the unanimously-passed 14th Amendment. Article 63-A, as originally included in the Constitution in 1997, was much more stringent and vast in scope. A House member was deemed to have defected from a political party if he committed a breach of party discipline, which meant a violation of conduct and declared policies, or voted against any direction issued by the parliamentary party to which he belonged. This provision gave extraordinarily sweeping powers to the party head to decide the fate of legislators.

Article 63-A was substantially amended in 2002 during Gen Musharraf’s rule and later validated through the 17th Amendment in 2003. The amended provisions diluted the original stringency of the law and limited the scope of defection to only a few areas, such as voting against parliamentary party direction in relation to the election of the prime minister or chief minister or vote of confidence or no-confidence or a money bill, besides resigning from the party or joining another party.

The defection provision was further amended through the 18th Amendment when Article 63-A was rephrased; voting against parliamentary party direction on a constitutional amendment was added as further grounds for defection, and the power of the parliamentary party head to send a declaration of defection to the presiding officer and the ECP was, instead, given to the party head.

This is where the Constitution stood when the recent no-confidence resolution was jointly moved by the opposition alliance PDM and the PPP against then prime minister Imran Khan. A number of PTI legislators also publicly criticised the prime minister and an impression was created, probably intentionally by the PDM, that these disillusioned legislators would also vote in favour of the no-confidence motion. None of these PTI legislators, however, formally resigned from the PTI or joined any other party, and therefore stayed clear of the red lines of defection under Article 63-A. Despite this, and sensing the strong possibility of defection, the president of Pakistan, upon the advice of the PTI-led federal government, filed a reference in the Supreme Court to seek its advice on whether the votes by the defecting members would be counted during the no-confidence vote and if the defecting members would be disqualified for life from contesting elections. Quite obviously, the reference was also meant to create a fear of lifelong disqualification among the rebel PTI legislators. The reference, therefore, was a political manoeuvre as well as a legal move.

As many constitutional experts opined at that time, a simple reading of Article 63-A conveyed the unmistakable impression that the defecting members’ votes would be counted but they would be penalised by being de-seated and that no further penalty was envisaged in the constitutional provision besides making legislators lose their seats.

The Supreme Court order of May 17 — a majority judgement of three judges with two judges on the bench strongly dissenting — came as quite a surprise to many constitutional experts, mainly because, as phrased by the two dissenting judges, “Article 63-A of the Constitution of the Islamic Republic of Pakistan is a complete code in itself … any further interpretation of Article 63-A of the Constitution, in our view, would amount to rewriting or reading into the Constitution… .”

It is not only the ‘rewriting’ of the Constitution which is of concern. The order of disregarding the defecting members’ votes has made the constitutional provision on defection come full circle — back to its 49-year-old position. In fact, the order to disregard the defectors’ votes goes even beyond what was originally provided for in the 1973 Constitution in extremely extraordinary circumstances. The Supreme Court order is a permanent one and not a temporary arrangement for 10 years as was the case with the original 1973 Constitution. The original 1973 provision made disregarding the defectors’ votes conditional upon the majority of parliamentary party members not supporting the defectors. According to the Supreme Court order, even if the entire parliamentary party revolts against its leader and decides to pass a vote of no-confidence, their votes will be disregarded. Apparently, the new authority bestowed by the Supreme Court order will end up further strengthening the leaders’ authoritarian hold over their parties.

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