Defection decision



May 22, 2022

Defection decision

Dr. Tahseen Mahmood Aslam talks about a contentious matter

Apparently, the Defection decision of the Supreme Court declaring that a parliamentarian’s vote is inconsistent with his parliamentary party with respect to an election to the office of a prime minister or chief minister, a vote of no-confidence and a finance bill ought to be disregarded. At the face value this decision appears to be assuaging the populist sentiment in vogue recently but then the emergence of this populist view is not genuine but has been particularly aroused through a deliberate campaign initiated and sustained by certain elements in the country. The five-member bench of the Supreme Court hearing this case consisted of Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Mazhar Alam Miankhel and Justice Jamal Khan Mandokhel. After weeks of deliberations the court delivered a majority verdict in which CJ Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar decided that the defection vote was to be disregarded whereas Justice Miankhel and Mandokhel dissented with this judgment stating that giving an opinion on the presidential reference was akin to rewriting the Constitution.
The matter under deliberation of the Supreme Court did pertain to a presidential reference seeking interpretation of Article 63-A of the Constitution which is related to the status of defecting lawmakers. In the reference, the President had asked four main questions from the apex court:
• Should Article 63-A have a limited or a broad, purpose-oriented interpretation?

• Will the defecting members’ vote be counted, given equal weightage?

• Will the defectors be disqualified for life?

• Measures that can be taken to prevent defection, floor crossing and vote-buying.
The judges deliberated the issues raised and gave their verdict on all four questions. The majority verdict answered the first question was related to the proper approach to be taken for the interpretation and application of Article 63-A by stating: “In our view, this provision cannot be read and applied in isolation and in a manner as though it is aloof from, or indifferent to, whatever else is provided in the Constitution.” They went on to say that Article 63-A was an “expression in the Constitution itself of certain aspects of the fundamental rights that inhere in political parties under clause (2) of Article 17,” adding that the two provisions were “intertwined”. Article 17 of the Constitution guarantees citizens the fundamental right “to form or be a member of a political party”.
The verdict went on to say that defections were “one of the most pernicious ways” in which political parties could be destabilised, noting that they could also delegitimise parliamentary democracy. “Defections rightly stand condemned as a cancer afflicting the body politic. They cannot be countenanced,” the order said, adding that 63-A must be interpreted in a “purposive and robust manner”. “The pith and substance of Article 63-A is to enforce the fundamental right of political parties under Article 17 […]. It must therefore be interpreted and applied in a broad manner, consistent with fundamental rights,” the verdict said. If there is a conflict between the fundamental rights of the collectivity [political party] and an individual member, the former must prevail, it added.
They then took up Question 2: Will the defecting members’ vote be counted, given equal weightage?
Giving its stance on the second question, the verdict said that the vote of any member of a parliamentary party in a house “that is cast contrary to any direction issued by the latter in terms of para (b) of clause (1) of Article 63-A 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, action that would result in a declaration of defection.” Then they came to Question 3: Will the defectors be disqualified for life? The court also observed that a declaration of defection could result in disqualification under Article 63 if parliament passed an appropriate law. “While it is for parliament to enact such legislation, it must be said that it is high time that such a law is placed on the statute book. If such legislation is enacted it should not amount to a mere slap on the wrist but must be a robust and proportionate response to the evil that it is designed to thwart and eradicate.” Then came Question 4: Measures that can be taken to prevent defection, floor crossing and vote-buying. In this context the verdict refrained from giving an opinion on the fourth question, deeming it to be “vague, too broad and general”. It subsequently returned the question unanswered.
The two judges dissented with the above mentioned verdict and wrote in their dissented note that Article 63-A was a “complete code” in itself and provided a comprehensive procedure regarding defection as well as the consequences for doing so. “In case the Election Commission of Pakistan confirms the declaration sent by a party head against a member, he/she shall cease to be a member of the House. As a result thereof, his/her seat shall become vacant,” the judges said, adding that a right of appeal had also been provided under Article 63-A. They said that any further interpretation of Article 63-A would amount to “rewriting or reading into the Constitution”, which would affect its provisions that had not even been asked by the president. “Therefore, it is not our mandate. We see no force in the questions asked through this presidential reference, which are answered in the negative. However, if parliament deems fit or appropriate, [it] may impose further bar or restrictions upon the defectors,” the judges concluded.
There is hardly any doubt that this decision will have a profound effect on the way politicking is done in Pakistan. It must be noted that if it applies to the political parties functioning in the country it will also apply to the hidden forces that have been engaging in defection activities since decades. The verdict has also called into question the all-pervasive nature of Article 63A that details what qualifies as defection and how defectors should be dealt with procedurally. This was precisely the point of departure between the SC Bench that split up as the dissenting judges took the view mentioned in the Constitution arguing that they felt any additional reading into Article 63A would be akin to rewriting the Constitution. Despite the split the majority held that Article 63A cannot be read in isolation from the rest of the Constitution, especially not without considering the rights of political parties under Article 17.
The split verdict though has raised a bar to prevent horse-trading that may prove beneficial to the political process in the country but it has also prevented parliamentarians to listen to their conscience and vote accordingly. In this context, the verdict smacks of a regimented streak that is anti-thesis to democratic values aimed at dispersing powers and empowering individual equally. This exercise of conscience-driven dissent is widely encouraged and depriving legislators of this right goes against the grain of global democratic conduct of governance. There is hardly any doubt that arbitrary forces has misused this tendency to the extent that they have made mockery of it and has cast huge aspersions on the credibility of the elected representatives. TW

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Dr. Tahseen Mahmood Aslam is an educationist with wide experience


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