On March 18, 2003, UK Prime Minister Tony Blair passed a motion seeking parliamentary approval for the invasion of Iraq. Some 84 members of his Labour Party (LP) dissented while 69 abstained. Barring support from 146 members of the Conservative Party, the motion would have failed. The dissenting members of the LP were neither disqualified nor removed from the party. They continued to serve their constituencies.
Right to dissent remains an essential feature of a healthy and functioning democracy. Had such a right been taken away, shortcomings and flaws in the sovereign’s reasoning would not have been highlighted at the time. The dissenting voice of Labour MP Brian Sedgemore stands out:
“Of course there are laws, domestic and international, and they should be adhered to, but it takes people of clarity and understanding at the top to enable systems to work fairly and properly. In my view, we lack such people at the moment… Sadly, I do not trust some of the people who are leading us in this issue, so they cannot rely on my support tonight.”
It is in this context that we must look at the Supreme Court’s 3:2 split decision preventing the votes of defecting lawmakers from being counted. The decision was confined to four instances: the election of prime minister and chief minister; a vote of confidence or no-confidence; a constitution amendment bill; and a money bill.
Article 63-A has been the subject of much controversy since President Arif Alvi filed a presidential reference in March ahead of the vote of no-confidence against Imran Khan. The recent decision has left legal experts confused, and independent observers raising questions about external influence to give relief to the PTI. Speculation and allegations against the integrity of the court in the absence of solid evidence only serve to undermine its sanctity. Criticism should be focused on substantive issues.
So, looking at the decision itself, apex court’s legal interpretation defies logic. Article 63-A says that a parliamentarian can be disqualified on grounds of defection if he or she “votes or abstains from voting in the House contrary to any direction issued by the parliamentary party” to which he or she belongs. No reference is made in the constitution regarding pre-emptive action to stop a parliamentarian from voting, or preventing such a vote from being counted after it has been cast. A basic reading of the law only allows for the disqualification of a defecting lawmaker for the remaining parliamentary term with their votes counted. Any further interpretation would amount to “rewriting or reading into the constitution”, as aptly stated by Justices Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail in their dissenting note.
Perhaps our honourable justices would have placed due emphasis on the wording of the presidential reference itself, which asked the Supreme Court to interpret the legal status of the vote of party members when they are “clearly involved in horse-trading and change their loyalties in exchange for money”. In a hypothetical world, where every defection is a case of horse-trading, the recent ruling would make more sense. Because rogue parliamentarians acting with mala fide intent, for monetary gain or otherwise, should not be allowed to hold their party hostage as it can destabilize the government and undermine the parliament. In such a context, defections do stand rightfully “condemned as a cancer afflicting the body politic” as stated in the majority verdict.
However, not every defection is a case of horse-trading. The state of our intra-party democracy is already well documented with decisions in most parties being made by a close circle of people and imposed on its remaining members. Minimal effort, if any, is made towards engagement. Party members often feel excluded from the decision-making processes. Therefore, most defections are cases of genuine disapproval with leadership by party parliamentarians, for failing to meet the needs of their constituencies.
If the legislative intent was to categorically prevent defections, the constitution would have clearly said so. On the contrary, and rightfully so, the constitution allows broad room for dissent and gives legislators liberty to form independent views. Much reliance is placed by the honourable justices in their majority verdict on Article 17, which allows every citizen freedom to form an association, union or become a member of a political party. But it requires a certain degree of constitutional gymnastics to tie it with defection. Unless the court thinks that the state plays a role in each case of defection, and such interference amounts to unreasonable restriction in allowing a party to keep its members intact, such reasoning makes little sense. The majority verdict also says that if there is a conflict between fundamental rights of the party and that of an individual member, the former must prevail, which raises some serious questions.
Is the Supreme Court prioritizing Article 17 over Article 19, which allows every citizen freedom of expression and speech? Is the court preventing parliamentarians from voting their conscience? If the court thinks that defections undermine the will of the people, what can be said of those constituencies in which the majority no longer supports the party mandate under which parliamentarian from that constituency sought election?
As a comparison, consider the Indian anti-defection law, contained in Paragraph 2(1)(b) of the Tenth Schedule to the Indian constitution added through the Fifty Second Amendment Act, which does not limit disqualification to just four cases. Rather, it is all-encompassing. In the landmark case of Kihoto Hollohan v. Zachillhu & Ors, the Indian Supreme Court ruled that defection in votes on any legislative business automatically triggers disqualification. While the Indian law is much more restrictive, compelling parliamentarians to stick to party lines, even that verdict did not discount votes by reading words into the constitution.
Coming back to Pakistan, the Supreme Court’s decision now throws the future of Punjab government up in the air, as 25 dissident PTI lawmakers joined opposition ranks to elect Hamza Shehbaz as chief minister. Without those votes, Shehbaz does not hold the simple majority of 186 needed for a vote of confidence, which essentially indicates the need to hold another round of elections. Owing to judicial overreach, the saga of political uncertainties is not yet over.
Right to dissent remains an essential feature of a healthy and functioning democracy. Had such a right been taken away, shortcomings and flaws in the sovereign’s reasoning would not have been highlighted at the time. The dissenting voice of Labour MP Brian Sedgemore stands out:
“Of course there are laws, domestic and international, and they should be adhered to, but it takes people of clarity and understanding at the top to enable systems to work fairly and properly. In my view, we lack such people at the moment… Sadly, I do not trust some of the people who are leading us in this issue, so they cannot rely on my support tonight.”
It is in this context that we must look at the Supreme Court’s 3:2 split decision preventing the votes of defecting lawmakers from being counted. The decision was confined to four instances: the election of prime minister and chief minister; a vote of confidence or no-confidence; a constitution amendment bill; and a money bill.
A basic reading of the law only allows for the disqualification of a defecting lawmaker for the remaining parliamentary term with their votes counted. Any further interpretation would amount to “rewriting or reading into the constitution”, as aptly stated by Justices Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail in their dissenting note.
Article 63-A has been the subject of much controversy since President Arif Alvi filed a presidential reference in March ahead of the vote of no-confidence against Imran Khan. The recent decision has left legal experts confused, and independent observers raising questions about external influence to give relief to the PTI. Speculation and allegations against the integrity of the court in the absence of solid evidence only serve to undermine its sanctity. Criticism should be focused on substantive issues.
So, looking at the decision itself, apex court’s legal interpretation defies logic. Article 63-A says that a parliamentarian can be disqualified on grounds of defection if he or she “votes or abstains from voting in the House contrary to any direction issued by the parliamentary party” to which he or she belongs. No reference is made in the constitution regarding pre-emptive action to stop a parliamentarian from voting, or preventing such a vote from being counted after it has been cast. A basic reading of the law only allows for the disqualification of a defecting lawmaker for the remaining parliamentary term with their votes counted. Any further interpretation would amount to “rewriting or reading into the constitution”, as aptly stated by Justices Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail in their dissenting note.
Perhaps our honourable justices would have placed due emphasis on the wording of the presidential reference itself, which asked the Supreme Court to interpret the legal status of the vote of party members when they are “clearly involved in horse-trading and change their loyalties in exchange for money”. In a hypothetical world, where every defection is a case of horse-trading, the recent ruling would make more sense. Because rogue parliamentarians acting with mala fide intent, for monetary gain or otherwise, should not be allowed to hold their party hostage as it can destabilize the government and undermine the parliament. In such a context, defections do stand rightfully “condemned as a cancer afflicting the body politic” as stated in the majority verdict.
However, not every defection is a case of horse-trading. The state of our intra-party democracy is already well documented with decisions in most parties being made by a close circle of people and imposed on its remaining members. Minimal effort, if any, is made towards engagement. Party members often feel excluded from the decision-making processes. Therefore, most defections are cases of genuine disapproval with leadership by party parliamentarians, for failing to meet the needs of their constituencies.
The Supreme Court’s decision throws the future of Punjab government up in the air, as 25 dissident PTI lawmakers joined opposition ranks to elect Hamza Shehbaz as chief minister. Without those votes, Shehbaz does not hold the simple majority of 186 needed for a vote of confidence, which essentially indicates the need to hold another round of elections.
If the legislative intent was to categorically prevent defections, the constitution would have clearly said so. On the contrary, and rightfully so, the constitution allows broad room for dissent and gives legislators liberty to form independent views. Much reliance is placed by the honourable justices in their majority verdict on Article 17, which allows every citizen freedom to form an association, union or become a member of a political party. But it requires a certain degree of constitutional gymnastics to tie it with defection. Unless the court thinks that the state plays a role in each case of defection, and such interference amounts to unreasonable restriction in allowing a party to keep its members intact, such reasoning makes little sense. The majority verdict also says that if there is a conflict between fundamental rights of the party and that of an individual member, the former must prevail, which raises some serious questions.
Is the Supreme Court prioritizing Article 17 over Article 19, which allows every citizen freedom of expression and speech? Is the court preventing parliamentarians from voting their conscience? If the court thinks that defections undermine the will of the people, what can be said of those constituencies in which the majority no longer supports the party mandate under which parliamentarian from that constituency sought election?
As a comparison, consider the Indian anti-defection law, contained in Paragraph 2(1)(b) of the Tenth Schedule to the Indian constitution added through the Fifty Second Amendment Act, which does not limit disqualification to just four cases. Rather, it is all-encompassing. In the landmark case of Kihoto Hollohan v. Zachillhu & Ors, the Indian Supreme Court ruled that defection in votes on any legislative business automatically triggers disqualification. While the Indian law is much more restrictive, compelling parliamentarians to stick to party lines, even that verdict did not discount votes by reading words into the constitution.
Coming back to Pakistan, the Supreme Court’s decision now throws the future of Punjab government up in the air, as 25 dissident PTI lawmakers joined opposition ranks to elect Hamza Shehbaz as chief minister. Without those votes, Shehbaz does not hold the simple majority of 186 needed for a vote of confidence, which essentially indicates the need to hold another round of elections. Owing to judicial overreach, the saga of political uncertainties is not yet over.