Defection clause in the constitution

Laws must be followed in letter and spirit

Laws are devised for two complementary purposes; to guide the conduct of people and to lay a framework within which state institutions must act. If a certain thing has to be completed by state institutions in a particular manner, then that has to be dispensed strictly according to the framework permitted. Central to this concept is that state functionaries are only free to act to the extent permitted by law. Unless a law specifically authorizes a particular course of action, then that action is prohibited, whereas people are inherently free to act unless barred by law. This well-entrenched purpose of law heralds the liberty of individuals and minimizes the possibility of arbitrariness by state institutions. Of course, it would be an intolerable exercise by a tax collector to appropriate the income of a person without any justification emanating from the Income Tax Ordinance, 2001, or any police officer to indefinitely incarcerate without the sanction of law. As people patiently wait for the outcome of the no-confidence vote against Prime Minister Imran Khan, the speaker gears himself to invalidate the votes of members from the ruling PTI as a way to defeat the opposition. The overarching question is: does the speaker possess the power to do so under the Constitution and by doing so, would he be transgressing from his Constitutional mandate.

The treasury fervently advocates for a pro-active role of the speaker during the parliamentary proceedings allowing him to prevent floor-crossing by any member from the government under Article 63A of the Constitution of Islamic Republic of Pakistan, 1973. Undoubtedly, the purpose of incorporating Article 63A in the Constitution was to curb the proliferating menace of floor-crossing. By making defection from a parliamentary party a Constitutional offence, Article 63A sought the hallowed goal of achieving ideologically driven politics; from the historical vantage point, this amendment was inserted in the Constitution to cleanse the politics from monetary remuneration in exchange for votes which had been prevalent in the 1990s.

Soon after its promulgation, Article 63A was challenged in the Supreme Court in the Wukala Mahaz Barai Tahafooz Dastoor case reported in PLD 1998 SC 1263. The Supreme Court, composed of a seven-member bench dismissed the argument that forcing members to vote on party lines tramples the fundamental right of the concerned members to express the sentiments of their constituents. In support of Article 63A, the court unequivocally held that the act of defying the party engenders doubts in the citizens about the transparency of the political process. However, in discussing the extent of the defection clause, the then Chief Justice of Pakistan Ajmal Mian, remarked that the clause imposes sanctions (penal in nature). Therefore, contrary to the commonly held belief that the Constitution is to be widely interpreted, envisaging future changes in social attitudes, Article 63A has to be read narrowly.

A Constitution is merely a series of provisions on paper unless it is religiously followed with zeal and zest; its endurance and enforceability are contingent on its reverence by our political class.

The only penalty envisaged under Article 63A is disqualification of a member; the speaker does not possess the requisite authority under the Constitution to disqualify a member who has defected from his/her party. Invalidating votes on the ground of defection would amount to adding additional penalties in Article 63A and unconstitutionally expanding its scope contrary to the narrow reading enunciated in the Wukala Mahaz case. An elaborate procedure is contained in Article 63A whereby, after the member has committed the act of voting, the party head may declare the member to have defected. However, this declaration will not automatically result in a member’s disqualification and will only result in it once confirmed by the Election Commission of Pakistan. The Constitution has not vested the power of disqualification/penalization of a member on the party head or the speaker. The speaker of the National Assembly under Article 63A acts only as an intermediary between the Party Head and the Election Commission. The menial role of the speaker is underscored in Article 63A(3), according to which, if the speaker does not transmit the declaration of defection to the Election Commission within two days, the Constitution presumes that the Commission would have received it. Therefore, contrary to the narrative built by the government, the role of a speaker under Article 63A is of a mere post office and nothing more can be attributed to him.

Hypothetically, even if the speaker decides to declare votes of the PTI members invalid on the ground of defection, it would be patently illegal and unconstitutional as the speaker would be pre-empting defection before it even arises. Constitutionally speaking, defection crystallizes when a member “votes or abstains from voting” which is then followed by a Show Cause Notice on the defected member, culminating in a declaration of defection by the party head. Since defection cannot be declared by the speaker as he is not the party head consequently, invalidation of votes on this ground would indicate that he is unconstitutionally assuming the role of the party head. Article 63A is unambiguous, and creates mandatory pre-requisites before the declaration of defection can be made thereby, eliminating the possibility of arbitrariness.

A Constitution is merely a series of provisions on paper unless it is religiously followed with zeal and zest; its endurance and enforceability are contingent on its reverence by our political class. Unfortunately, Pakistan’s history is laden will unforgivable and deplorable unconstitutional and extra-constitutional acts that have perverted our political culture and severely weakened our Constitution’s guardrails. Whether the Prime Minister emerges as the victor or the vanquished from the vote of no-confidence, the spirit of our Constitution must not be obliterated during the process.

Raja Hamza Anwar
Raja Hamza Anwar
The writer can be reached at [email protected]

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