Image source: Samaa Web Desk, ‘Party positions in the National Assembly (SAMAA, 27 July 2018) <https://www.samaa.tv/wp-content/uploads/2018/07/1674952-NationalAssemblyAPP-1522607658-517-640×480-640×428.jpg> accessed 16 May 2022.
The people’s will often manifests itself in representative democracy. This notion generally sees the citizenry vote for the members it wants to represent. These members are affiliated with different parties that dictate coordinated policies and if a party secures enough seats, they form a government. Naturally, dissent and a lack of cohesion between members within a party gives way to political uncertainty; how can a democratic system function if the parties involved (the government and opposition) cannot put up a united policy to pursue? This concern is amplified in semi-democratic countries such as Pakistan where underhanded premises often lead to disparity within a party’s ranks.
I. A History of Defection in Pakistan
Pakistani politics has been known to involve charges of unconscionable acts to sway a party-member to either vote against his own party or abandon it altogether. These endeavours answer to names including defection, floor-crossing, and horse-trading. By way of example, the 1989 (unsuccessful) vote of no-confidence against Benazir Bhutto saw six members within the opposition’s ranks and three from the government vote contrary to party lines. Defectors from the opposition were later rewarded with Cabinet positions and monetary incentives.[1] The 1994 toppling of the PML-N/ANP coalition government in the NWFP saw similar themes.[2] To remedy this, the 14th Amendment saw the insertion of Article 63A into the Constitution of Pakistan.[3] The Article states that party-members who: resign, join another party, vote or abstain to do so contrary to party lines on certain matters[4] can be declared defectors.
Recent events, concerning former Prime Minister Imran Khan’s ouster, resuscitated talk of this theme. Plagued by political and economic instability, the PTI-led coalition government was exposed to calls for a vote of no-confidence against both the Prime Minister and Chief Minister in Punjab. Dissident members within the PTI itself made clear their preference towards an ouster.[5] In a bid to pre-emptively nip the matter in the bud, the PTI stated that any of its party members intending to vote in favour of the vote of no-confidence would be proceeded against under Article 63A.
II. The Application of Article 63-A
Article 63A’s application in our context is clear from a literal reading; party-members adjudged to have voted contrary to the PTI’s direction (by voting in favour of the no-confidence resolution) may be declared to have defected. Upon such a declaration, the defector is given a chance to make a case as to why such a declaration should not be made. The declaration must be forwarded to the Election Commission of Pakistan which will decide the matter within a month. If the Commission confirms the declaration, the defector stands disqualified. The right to appeal lies before the Supreme Court.
Such a reading applies to any member who “votes or abstains from voting…”; the act forms the basis for any penalty.[6] Jurists have weighed in on this provision’s effect, stating that a party member can vote against his party’s lines, however, the consequence of doing so is subsequent disqualification.[7] The PTI disagreed. It declared that proceedings under Article 63A against defecting party members would lead to the disqualification of such a member before he had even voted; any potentially adverse vote would be void from the get-go. To seek legal cover, the President invoked the Supreme Court’s advisory jurisdiction under Article 186.[8] Plainly, it asked if a defector, in the context of a vote of no-confidence, had a right to have his vote counted and whether such a defector could be served with a lifetime ban under Article 62(1)(f) for dishonesty.[9] The PTI also filed a subsequent petition before the Supreme Court of Pakistan to settle these matters of interpretation.[10] In its Order dated 17th May, the Supreme Court took up both cases and settled the question.[11] The decision vindicates PTI’s stance, to an extent. Before a look at the decision itself, however, some context into the underlying themes may prove prudent.
For one, the toppling of Imran Khan’s premiership involved no defection from PTI’s camp in the sense Article 63A conveys. Whilst members of the PTI may have aligned themselves with the opposition, they did not cast their votes in favour of the no-confidence motion. Any application of Article 63A upon them would be far-fetched; threatening action against a party member who has not positively taken any action against his/her party is draconian in nature. Subscribing to such a view would allow the flimsiest of claims of ‘disloyalties’ to successfully deseat an elected member of an Assembly. As aforementioned, the Constitution clearly points to the act of voting or abstaining as the basis of any charge. Allowing such a far-flung misinterpretation would vest unimpeded power within party heads and stifle any discourse which may have been based on a party member’s conscience on contentious matters of importance.
The movement against the PTI’s coalition government in Punjab is an entirely different matter. The opposition, consisting of the PML-N and PPP, held 172 seats in the Punjab Assembly. A simple majority of 186 votes in favour of the no-confidence motion was required to topple the coalition. The opposition successfully managed 197 votes, which naturally raises questions of help from within the PTI’s ranks. This is not a surprise considering 24 dissident PTI members in the Punjab Assembly had publicly announced a change in affiliation.[12] Proceedings are said to be underway against 26 PTI MPAs for voting contrary to party lines in Punjab.[13] For these members, Article 63A’s application is straightforward: by choosing to go against their party in a vote of no-confidence against the CM Punjab, the PTI is justified in moving to disqualify these members. The Supreme Court agreed, and its recent judgement serves to undermine the vote of no-confidence that saw Hamza Shehbaz become the Chief Minister of Punjab.
III. The Effects of Disqualification in Light of the Recent Judgement
The majority judgement in the Supreme Court’s decision essentially took a purposively broad approach that sought to “protect, and ensure the continued coherence, of political parties in the legislative arena…” in a charge against defection: “one of the most pernicious ways in which a political parties can be destabilized.”[14] Remarking that defection shouldn’t theoretically exist in a democracy, the Supreme Court held that Article 63-A had to be interpreted keeping in mind both legislative intent that sought to emulate such idealism as well as a holistic overview of the Constititution and the precedence it gave to political parties. By applying such an approach, it held that defecting votes “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…”.
As to the question of disqualification and its extent, the Supreme Court eschewed overreach, stating that such a question would be better answered through legislation enacted by Parliament. It did, however, state that such a law “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.” The decision essentially negates PTI’s move to seeks graver, court-sanctioned censure along the lines of lifetime disqualification. Such an interpretation was premised on linking Articles 63A with Article 62(f) of the Constitution (read with Article 113). Article 62(f) holds that any member found to not be “sagacious, honest, and ameen” shall not be eligible to qualify as a member of Parliament or a Provincial Assembly. The provision specifies no express time limit for how long such a bar to qualification stands. However, judicial precedent, as dictated by Allah Dino Khan Bhayo v Election Commission of Pakistan, holds that Article 62(f) entails lifetime disqualification: “if a person, is held not to be qualified in terms of Article 62(1)(f) of the Constitution such absence of qualification in law will haunt him forever.”[15] The Supreme Court, however, did not see fit to extend the precedent of Bhayo to cases of electoral defection, citing the legislature to be the appropriate forum for any reforms in such an arena. This is a welcome step; Bhayo’s indefinite and harsh application has been criticised by many legal commentators.[16]
IV. International Practice
i. Bangladesh
Article 70 of the Bangladesh Constitution states that a member of Parliament must relinquish his position if he resigns from or votes against the party’s directives.[17] The case is referred by the Speaker to the Election Commission. The goal of the drafters of this article was to eliminate the possibility of unprincipled defection, corruption, self-interest, and horse-trading among MPs by compelling them to continue their allegiance to their respective parties.[18] By doing so, it ensures discipline among political party members and safeguarded the political system’s stability and continuity.[19] However, this clause has given birth to a stringent trend where MPs do not oppose their party’s agenda in order to avoid losing their seat in Parliament. This is evident in the following opinion: “Basically the Article 70 is making the members a puppet. Most of the time in our country the ordinance is made a week before the parliament session and in the parliament it is only approved. No debate or argument or legislative actions take place at all. So, we can never expect the rule of law to flourish under this circumstance”.[20]
ii. India
The Tenth Schedule, which was added to the Constitution in 1985, is commonly referred to as the anti-defection law.[21] It establishes the procedure for disqualifying parliamentarians on the basis of defection by the Presiding Officer of a legislature on the basis of a petition from any other member of the House. The law is applicable to both Parliament and state assemblies. The disqualifications suffered by a member are detailed in paragraphs 2(1)(a) and (b). It gives expression to this idea by disqualifying any Member who votes or abstains from voting in violation of “any directions” provided by the political party. Under paragraph 2(1)(b) “dissent becomes defection”.[22] Hence, such members may face disqualification under the Tenth Schedule for a period up till the expiration of the seatholder’s term. The application of this law was seen in 1991 when eight Janata Dal MPs were disqualified from Parliament for siding with the Chandra Shekhar government.[23] In Kihoto Hollohan v Zachillhu & Others, it was argued that the provisions of the Tenth Schedule were a flagrant infringement of fundamental principles and values essential to the survival of Parliamentary democracy and violated the legislators’ freedom of expression, right to dissent, and freedom of conscience.[24] The Court found otherwise.[25] It stated that such restrictions were meant to reinforce the fabric of Indian Parliamentary democracy by discouraging unprincipled and unethical political defections.[26] It held that a Member’s freedom of expression is not absolute, but rather subject to the laws of the Constitution, as well as the norms and standing orders governing House Procedure.[27]
Unlike the Constitutions of Bangladesh and India, the Constitution of Pakistan specifies both resignation from the nominating political party and membership in “another political party” in the Parliament as reasons for disqualifying an MP for defection. Furthermore, it does not prohibit MPs from violating party directions during a legislative vote. Rather, it envisions only three scenarios: the election of the Prime Minister or the Chief Minister; a vote of confidence or no-confidence; and a vote of no-confidence; subsequently an MP has greater discretion to follow his conscience when it comes to an ordinary law that may be regarded arbitrary.[28] By doing so, Pakistan has, thus far, struck a fine balance between allowing a lawmaker to express his opinion and restricting it so as to not allow unimpeded defections.
The PTI however, by wanting to strengthen anti-defection laws beyond neighbouring practice through the use of lifetime disqualification on members who have not cast a vote against party directions, threatens to turn members of Parliament and Provincial Assemblies into mere rubber stamps that will no longer have the ability to voice their concerns.
V. No anti-defection laws: international experience
Generally speaking, countries that are renowned for upholding the democracy and rule of law do not make use of anti-defection laws.[29] The implications of defections in these countries are left to the parties to deal with in order to maintain intra-party discipline, and individual elected representatives are required to justify their choice to the party and in their local district.[30]
i. The United States
According to the United States’ courts, a disagreement between a political party and one of its members is a private matter, and the political party has the right to dismiss a member who holds opposing beliefs.[31] It was asserted that because the legislator members were not chosen by the parties, the parties had no control over the legislative membership.[32] The case law of the States reveals that sanctions imposed on legislators who express a belief or statement contrary to their political membership are nowhere to be found in the US Constitution. Therefore, their constitutionality have been contested on the basis of violating (i) the freedom of speech of MPs and (ii) conflicting freedom of association of a political party.
In Bond v Floyd, Julian Bond, an MP, was chastised by the House for making anti-Vietnam statements. He was later disqualified and was not permitted to take the oath of office as a lawmaker. The Supreme Court denounced the House judgment, judging it to be a breach of First Amendment rights, namely the right to free expression on contentious matters.[33] Building on these liberal themes, it was held in Gewertz v Jackman that the ousting of a legislator for criticising the Speaker amounted to violations of the right to freedom of speech and expression.[34]
ii. The United Kingdom
Similarly to the United States, the United Kingdom adopts an internalized model rather than having anti-defection legislation, in which defection is managed by internal party regulations.[35] In democracies such as the UK, differences of opinion among members of the same party are tolerated. The most prominent example is when more than 150 members of Prime Minister Tony Blair’s party voted against him when he proposed that the UK join the war in Iraq. To pass the measure, he needed the cooperation of Conservative Party members.[36] Labour Party members in the United Kingdom did not have to leave their office simply because they disagreed with the party stance.[37] They just stated their preference and proceeded to participate in the celebration.[38]
VI. Conclusion
Subcontinental provisions pertaining to democracy and defection are perhaps an isolated case-study, albeit at odds with globally evolving democratic trends. For Pakistan, the current state of affairs can largely be attributed to democracy never being able to gain a firm footing. Whilst the recent Short Order passed by the Supreme Court has correctly identified expediency and underhandedness as the tumours that threatens democracy in Pakistan, it has also exposed itself to claims of “rewriting the Constitution” (as observed by the minority judgement in the case). A detailed judgement of the case will follow, but it is perhaps apt to end on a single point to muse upon: even our subcontinental neighbours, with our shared history and culture, have not gone beyond mandating the vacation of a defecting lawmaker’s seat for the remainder of his term. The Supreme Court has essentially invited the legislature to draft provisions that will potentially lengthen the term of disqualification and whilst this is perfectly within Parliament’s purview, it may well be missing the bigger picture. Democracy cannot be forced, and change must come from the grassroots themselves.
[1] Hamid Khan, Constitutional and Political History of Pakistan, 3rd ed Oxford University Press 2017) 401.
[2] Ibid 429.
[3] The Constitution of the Islamic Republic of Pakistan 1973.
[4] These matters include the election of the Prime Minister/Chief Minister, a vote of no-confidence, a money bill, and a constitutional amendement.
[5] Shakeel Qarar, Imtiaz Ali, ‘PTI supporters forcibly enter Sindh House in Islamabad after hours-long protest’ (Dawn, 18 March 2022) <https://www.dawn.com/news/1680612> accessed 18 April 2022.
[6] Constitution of Pakistan.
[7] Salaar Khan, ‘Conjuring Confidence’ (The News, 19 March 2022) <https://www.thenews.com.pk/print/942754-conjuring-confidence> accessed 19 April 2022.
[8] Constitution of Pakistan
[9] Haseeb Bhatti, ‘SC forms larger bench on presidential reference seeking opinion on Article 63-A’, (Dawn, 21 March 2022) <https://www.dawn.com/news/1681111> accessed 19 April 2022.
[10] Haseeb Bhatti, ‘Imran Khan moves SC to impose lifetime ban on defecting lawmakers’, (Dawn, 14 April 2022) <https://www.dawn.com/news/1684980> accessed 19 April 2022.
[11] Supreme Court of Pakistan, Presidential Reference No.1 of 2022, Const. Petition Nos. 2 and 9 of 2022. <https://www.supremecourt.gov.pk/downloads_judgements/refernece_1_2022.pdf> accessed 20 April 2022.
[12] Adnan Sheikh, ‘Hamza Shehbaz elected Punjab CM after garnering 197 votes in session marred by melees, chaos’ (Dawn, 16 April 2022) <https://www.dawn.com/news/1685288> accessed 20 April 2022.
[13] Staff Reporter, ‘46 PTI Dissidents Asked to Appear Before ECP’ (Dawn, 26 April 2022) <https://www.dawn.com/news/1686872> accessed 27 April 2022.
[14] Supreme Court of Pakistan (n 11).
[15] 2013 SCMR 1655.
[16] Asad Rahim Khan, ‘Laws for Lifetimes’ (Dawn, 2 February 2022) <https://www.dawn.com/news/1672849> accessed 20 April 2022.
[17] The Constitution of the People’s Republic of Bangladesh, 1972 art 70.
[18] Secretary v Hossain (1999) 19 BLD (AD) 276, para 11.
[19] ibid.
[20] ‘Anti Floor crossing law takes away the freedom or liberty of the ministers chosen by the people’ (The Lawyers & Jurists)<https://www.lawyersnjurists.com/article/anti-floor-crossing-law-takes-away-the-freedom-or-liberty-of-the-ministers-chosen-by-the-people/> accessed 18 April 2022.
[21] The Tenth Schedule of the Constitution of India, 1950.
[22] Kihoto Hollohan v. Zachillhu & Ors AIR 1993 SC 412 para 6.
[23] Barun Mitra, ‘Anti- Defection: A Law Endangering Democracy’ (Mint, 21 August 2008) <https://www.livemint.com/Opinion/7ixDFllqfTwkR5tyL0cDjN/A-law-endangering-democracy.html> accessed 18 April 2022.
[24] AIR 1993 SC 412 (n 20), para 7.
[25] Ibid para 21.
[26] Ibid para 18.
[27] Ibid para 122.
[28] M. Ehteshamul Bari & Pritam Dey, ‘The Anti-Defection Provision Contained in the Constitution of Bangladesh, 1972, and Its Adverse Impact on Parliamentary Democracy: A Case for Reform’ (2020) 37 Wis Int’l LJ 469, 486-87.
[29] Mordhwaj, ‘Anti-Defection Law; Guard or Evil for Democracy’ (2018) 4 Supremo Amicus 260, 264.
[30] Ibid.
[31] Ibid.
[32] Ibid.
[33] Bond v. Floyd, (1966) 385 U.S. 116.
[34] Gewertz v. Jackman, (1979) 467 F Supp.1047.
[35] Pritika Negi & Sampada Pande, ‘Anti-Defection Law: Annihilation of Dissent versus Constitutional Ethics’ (2021) 24 Supremo Amicus [1129], 1132.
[36] Subramaniam Vincent, ‘Dissent isn’t Defection’ (India Together, 1 April 2005) <https://indiatogether.org/dissent-editorials> Accessed 18 April 2022.
[37] Ashwin Mahesh, ‘Democracy without Dissent?’ (Rediff.com, 29 July 2003) <https://www.rediff.com/news/report/ash/20030729.htm> accessed 18 April 2022.
[38] ibid.
Bibliography
Pakistani Cases
Allah Dino Khan Bhayo v Election Commission of Pakistan [2013] SCMR 1655.
Bangladeshi Cases
Secretary v Hossain [1999] 19 BLD (AD) 276.
Indian Cases
Kihoto Hollohan v Zachillhu & Ors AIR [1993] SC 412.
American Cases
Bond v Floyd, [1966] 385 U.S. 116.
Gewertz v Jackman, [1979] 467 F Supp.1047.
Pakistani Legislation
The Constitution of the Islamic Republic of Pakistan 1973.
Bangladeshi Legislation
The Constitution of the People’s Republic of Bangladesh 1972.
Indian Legislation
The Constitution of India 1950.
Secondary Sources
Bari M.E and Dey P, ‘The Anti-Defection Provision Contained in the Constitution of Bangladesh, 1972, and Its Adverse Impact on Parliamentary Democracy: A Case for Reform’ (Wisconsin International Law Journal 2020).
Bhatti H, ‘Imran Khan moves SC to impose lifetime ban on defecting lawmakers’ (Dawn 2022).
Bhatti H, ‘SC forms larger bench on presidential reference seeking opinion on Article 63-A’ (Dawn 2022).
Khan A.R, ‘Laws for Lifetimes’ (Dawn 2022).
Khan H, ‘Constitutional and Political History of Pakistan’ (Oxford University Press 2017).
Khan S, ‘Conjuring Confidence’ (The News 2022).
The Lawyers and Jurists, ‘Anti Floor-Crossing Law Takes Away the Freedom or Liberty of the Ministers Chosen By the People’ (n.d).
Mahesh A, ‘Democracy Without Dissent?’ (Rediff 2003).
Mitra B, ‘Anti- Defection: A Law Endangering Democracy’ (Mint 2008).
Mordhwaj, ‘Anti-Defection Law; Guard or Evil for Democracy’ (Supremo Amicus 2020).
Negi P and Pande S, ‘Anti-Defection Law: Annihilation of Dissent versus Constitutional Ethics’ (Supremo Amicus 2021).
Qarar S and Ali I, ‘PTI Supporters Forcibly Enter Sindh House in Islamabad After Hours-long Protest’ (Dawn 2022).
Sheikh A, ‘Hamza Shehbaz Elected Punjab CM After Garnering 197 Votes in Session Marred By Melees, Chaos’ (Dawn 2022).
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Authors
Smam Abdallah Mir, Team Leader and Coordinator, RCIL & HR (smamabdallah10@gmail.com)
Firdes Shevket, Research Assistant, RCIL & HR (firdes.schwkt98@gmail.com)