This article examines the effect of the Supreme Court verdict/short order on the application of Article 63A of the Constitution. The Constitution was amended with a view to tackle the perennial problem of political defection in our political culture. The term “horse trading” gained currency during the 1990s with the revelations of ugly episodes of encampment of MPs in rest houses in Murree and Chhanga Manga. Both the PPP and PML(N) were involved in attempting to snatch mandate from each other. Ms Benazir Bhutto was then Prime Minister and Mian Nawaz Sharif was the Chief Minister of Punjab.
Both the political parties were involved in the game of horse-trading by offering inducements to MPs, including pecuniary benefits and/or ministerial posts, in exchange for change of political loyalties. And even though the attempts at ousting the opponent through vote of no confidence ultimately failed, the parliamentarians earned the unsavoury distinction of being referred to as “traded commodity”. This was in addition to them being referred to as inefficient, nepotistic and corrupt, the last tag pinned on their lapel by General Zia ul Haq, when he had them involved in getting development funds.
During the time of General Musharraf, the switching of political loyalties and turn-coating became an art: many technocrats, freelance politicians and clusters of political parties, joined the Federal/provincial cabinets, and some made it to occupying the top slot of Prime Minister or Chief Minister. No sooner was General Musharraf ousted than such politicians hopped back to their respective political parties and were welcomed there. And getting another opportunity, some of them jumped on the bandwagon of PTI. Thus, given incentives, there is a crop of a few serial turncoat politicians and political groups (registered as political parties), who have no qualms about quitting principles to join the new government!
Political defection has been a perennial problem the world over. However, the advanced democracies control it through ethical norms and the development of political values, where such a practice is abhorred by parties and constituents alike. Thus, there is no law for defection in the UK, USA and Canada. Certain other countries, like New Zealand and South Africa, enacted laws with sunset clauses and let it lapse, for there was no pressing need to retain them. Some 40 countries, mostly nascent democracies, have laws for curbing defection. It includes India, Bangladesh and Sri Lanka in our region. The first to legislate was India, which passed the 52nd Amendment to the Constitution in 1985. Defection being a major cause for political instability in Pakistan, it followed suit. Thus, the menace of floor-crossing and horse-trading was sought to be checked through law. Initially, the Parliament introduced Article 63A through the Constitution 14th (Amendment Act) 1997, but being very general, it was seldom used. The clause was therefore further amended and made more specific as well as stringent through the Constitution 18th (Amendment Act) 2010. It is a self-contained code containing substantive and procedural provisions for handling the issue of defection, as follows:
Defection is restricted to 4 grounds namely resigning from membership of a political party or joining another parliamentary party; voting or abstaining from voting in Parliament or Provincial Assembly contrary to the parliamentary party direction in relation to the election of, or casting vote of confidence/no confidence against the Prime Minister or Chief Minister; constitutional amendment bill and money bill.
When defection is alleged, the Party Head is required to issue a show cause notice to the member and if not satisfied with his reply, may make a declaration of defection and forward it to the Chief Election Commissioner, who places it before the Election Commission for decision. The Commission may confirm the declaration or otherwise. If the declaration is confirmed, the defector ceases to be a member and his seat becomes vacant. The aggrieved party (Party Head 6r defector) may file appeal in the Supreme Court, whose decision is final.
It is duty-bound to interpret the law and Constitution, but cannot rewrite it. Parliament may reexamine the verdict of the majority bench and amend the Constitution so as to restore the original clause.
Given the predictable outcome of the PDM move to oust the Prime Minister, the PTI made strenuous efforts to lure the party dissenters back into the fold and offered inducements to the estranged political allies to forestall the no-confidence motion. And being unsuccessful, in utter desperation, the party sought assistance from the Supreme Court. The President sent a reference, asking the Court to answer a few loaded questions, actually wanting it to interpret Art 63A in a manner to preempt the no-confidence motion. It was an inappropriate move on account of the time and content of the Reference.
Article 186 requires the Court to entertain the Reference, but in no way obligates it to answer all, and especially, the politically motivated and loaded questions. And with due respect to the august court and in no way doubting the wisdom and sagacity of its judges, it was not the occasion to give opinion on such politically-loaded questions at a time of severe political crisis. More so, because answers thereto, may have exposed the Court to unnecessary criticism of being perceived as a partisan arbiter.
Nothing damages public confidence in the administration of justice more than in giving opinion or settling political controversies. And whereas admittedly, the Court is at times required to adjudicate and decide about the legality or constitutionality of the executive/legislative actions, it should avoid involvement in political wrangling, where it can wriggle out of it. Had it not been post-event (after a vote of no-confidence passed and a new PM/CM elected), the reaction to the court verdict/opinion may have been catastrophi,: raising concerns about its neutrality as well as independence or impartiality.
Again, with profound respect to the conclusion arrived at by the majority bench to the effect that the votes cast by a defector shall not be counted but disregarded, it is fantastic, to say the least! Where is it written in the Constitution? If the Parliament had intended such an outcome, it would have said so. This way, Article 63A would have been a one-liner provision. But it is not so. The Article is one of the lengthiest provisions, describing the grounds of defection and a detailed process/procedure for disqualifying the defector.
Multiple constitutional authorities (Party Leader, Speaker, Chief Election Commissioner) and two constitutional bodies (Election Commission and Supreme Court) are involved in the process of imposing the penalty. All that process/procedure stands redundant and abolished, by saying that the vote cast will not be counted. Again, if the end result is to disregard the vote, who would vote and why? No sane person will do so. Again, where is it written that an elected member can be deprived of his representative status and deprived of his right to vote?
The Court’s reasoning of giving importance or preponderance to the collective entity (political party) vis-à-vis the individual member, is equally flawed. A political party is composed of members and can function only when it addresses their concerns and accommodates their interests. Again, in the case of our country, parties are neither democratically organized nor observe democratic norms or principles.
Almost all the political parties, with a few exceptions, are organized on hereditary principles. The son or daughter succeeds the father as party head. Elections, being a legal requirement, are a mere eyewash to perpetuate the hold of the ruling family over the party. Examples abound, such as the father-son duo operating as PM/CM in PML(N) and party chairman/co-chairman in the PPP. Further, in their conduct, the party leaders are no less nepotistic and corrupt than ordinary members. It is a well-known fact that reserved seats in the assemblies and Senate seats are dished out to family members, loyalists and highest bidders.
The verdict will further embolden the dictatorial hold of the party leader over members. And whereas the act of defection is abhorrent and condemnable, and disqualification is the proper punishment for the act, but still a public representative may be at liberty to vote according to his conscience and enjoy the freedom to express his opinion, contrary to that of his leader. More so, when he is ready to face the consequences of his act of defection.
Finally, how may the Court declare a constitutional provision redundant? There is absolutely no basis for it in the Constitution. Article 63A is crystal clear, as regards the process/procedure of disqualifying a defector. The Court has the power of judicial review, but is limited to striking down a law, when it is in conflict with the Constitution. Otherwise, the Court is as much a creature of the Constitution as the other State organs. It has no special or higher status.
It is duty-bound to interpret the law and Constitution, but cannot rewrite it. Parliament may reexamine the verdict of the majority bench and amend the Constitution so as to restore the original clause.
