This article discusses the constitutional scheme surrounding defection by members of a political party and the legal options available to the Government. It also highlights the evil of defection and how it shatters the democratic fabric. Let me clarify three things at the very outset. First, the Constitution of 1973 does not prohibit or bar defection by members of a political party. Second, establishment, anywhere in the world, is never neutral. Third, social media in Pakistan will play a mighty role in days to come.
Politics is a game where interests run supreme and to expect or desire, permanent, unequivocal fidelity, means playing against the rules. That is the first lesson all politicians learn and many learn it the hard way. Some live to tell the tale. Others leave a message in their death, very often at the hands of their most trusted confidantes.
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That is what history teaches us
The public perception about political leadership is acutely negative, to say the least and yet we continue to bring these politicians to the power corridors again and again. This means that the exercise of our “power” to elect is neither free, fair or without fear. We proceed to elect from the available lot not on the premise of who is the best but who happens to be the lesser evil. We have learnt not to expect principles, ethics or loyalty to have any say in our political dispensation. A slight change in the winds is taken as a sign by many to change the wings. That in essence defines our expectations from the political leadership and they have never disappointed us.
With the opposition exercising its Constitutional right to move a motion of no-confidence against the Prime Minister Khan, all hell has broken loose. The ruling party is grappling with the visible cracks within its rank and file as well as negotiating with the indirect and concealed assaults of its allies while the establishment claims neutrality, a claim that is as true as the West’s love for North Korea!
And while we witness the political frenzy, two constitutional provisions have caught my attention – Article 63A that deals with defection and Article 66 that deals with privileges of members of the Parliament. I may add here that Article 66 of the Constitution specifically provides that “no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Majilis-e-Shoora (Parliament)”.
I may add here that Article 66 is “subject to the Constitution” which means that any other provision of the Constitution may limit, qualify or restrict the privileges of a member and may expose such member to adverse consequences for exercising his privileges beyond the constitutionally permitted limits. For instance, no discussion can take place in Majlis-e-Shoora (Parliament) with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties (Article 68). Therefore, it can be assumed that there is a “qualified” right of freedom of speech available to a member of Parliament.
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The question is whether there is any restriction on a member’s right to vote?
This is an important question that has both political and constitutional connotations. But first, let us examine what is the scheme of Article 63 A:
- a)The term “defection” has not been defined but instances or actions have been prescribed under the Constitution that would establish that a member has defected. These actions include (a) resigning from his membership of the political party or joining another political party; or votes against the directions of Parliamentary Party to which he belongs in matters limited to (i) election of Prime Minister or the Chief Minister; or (ii) a motion of confidence and no confidence motion; or (iii) the Money Bill or a Constitution amendment Bill.
- b)The member betraying party trust can vote and his vote will be counted even if it results in the fall of the incumbent government.
- c)The defecting member will be disqualified by the Election Commission if aforesaid instances come to light and thereafter his seat will become vacant in line with the procedure prescribed under article 63 A after he casts his vote.
Article 63 A is restrictive and punitive by nature. It penalizes a member who goes against the party lines for example, as in the present case, while belonging to a particular governing party PTI, he elects to vote against his own Prime Minister in the pending no-confidence motion. In such a scenario a member stands disqualified and eventually his seat will become vacant. This means that the Constitution does not bar “the act of defection”; it only penalizes the defecting member after he defects. Does this interpretation, which is being suggested as the real mandate of Article 63 A of the Constitution, strengthens democracy or does it allow legitimacy to defection?
That brings us to a larger issue – democracy. In Pakistan, we have struggled to understand, respect, accept and implement true democratic norms. The old adage that “all is fair in love and war’ is applied with glaring frequency here to seek political victory. There is little room for conscientious dictates as most space is consumed by a dirty uninhibited quest for power. Political affiliations are as temporary as the fizz in a soft drink. The cloak of uncertainty keeps everyone on a vigil and the fear of losing a political partner when most needed, never recedes. Politicians join hands not for the betterment of the masses but for their self-aggrandizement.
So what we see happening today has happened in the past too
We are struck in a vicious cycle unable or unwilling to shun the demons away. Sadly but truly, the establishment has played its part in creating this political mess that we are forced to call democracy. It is not a hidden secret that the establishment created political parties, facilitated partnerships, bought loyalties or forced conformity, all in the name of state security but in reality it all meant to further tighten their grip over the system. And while we confront these ugly realities we are compelled to fathom more. There is no end in sight or is there?
On the issue of changing political affiliations not in pursuance of higher standards of morality but for petty vested interests, H.L. Pohlman (in his work “Oliver Wendell Holmes – Free Speech and the Living Constitution” 1991 Edition: New York University Publication) wrote:
“The argument that the constitutional remedies against the immorality and unprincipled chameleon-like changes of political hues in pursuit of power and pelf suffer from something violative of some basic features of the Constitution, perhaps, ignores the essential organic and evolutionary character of a Constitution and its flexibility as a living entity to provide for the demands and compulsions of the changing times and needs. The people of this country were not beguiled into believing that the menace of unethical and unprincipled changes of political affiliations is something which the law is helpless against and is to be endured as a necessary concomitant of freedom of conscience.
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The onslaughts on their sensibilities by the incessant unethical political defections did not dull their perception of this phenomenon as a canker eating into the vitals of those values that make democracy a living and worthwhile faith. This is preeminently an area where judges should defer to the legislative perception of and reaction to the pervasive dangers of unprincipled defections to protect the community.’
I would like to take advantage of the judicial pronouncements from our neighbor, India, on this issue. With the people on both sides of the fence facing similar treatment at the hands of their political class, it is quite relevant to take a leaf from their experiences and apply it to our political discourse. This happens all the time in our honourable courts of law, in Pakistan as well as in India.
The Indian Constitution of 1956 added the Tenth Schedule through the Constitution (Fifty-Second Amendment) Act, 1985 to vigorously deal with the crippling malaise of defection of the members of the legislative assemblies.
The Statement of Objects and Reasons appended to the Bill which was later adopted as law states:
“The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance”.
The Supreme Court of India in a number of reported judgments (Shri Kihota Hollohon vs Mr. Zachilhu And Others AIR 1993 SC 412, G. Viswanathan vs The Hon’Ble Speaker Tamil 1996 AIR 1060, Narsingrao Gurunath Patil vs Arun Gujarathi, Speaker And Ors. 2003 (1) BomCR 363, Ravi S. Naik And Sanjay Bandekar vs Union Of India And Others AIR 1994 SC 1558 Parkash Singh Badal And Ors. vs Union Of India And Ors. AIR 1987 P H 263) while discussing the evils of defection and threat it poses to democratic dispensation has made invaluable observations which are worth sharing.
Dealing with the question “whether under the Indian constitutional scheme is there any immunity from constitutional correctives against a legislatively perceived political evil of unprincipled defections induced by the lure of office and monetary inducements” the Indian Supreme Court in the aforesaid judgments made some notable observations.
The Supreme Court proceeded to address this issue in the following words “…. there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behaviour conspicuous by their utter and total disregard of well recognized political proprieties and morality. These trends tend to degrade the tone of political life and, in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy. There is the legislative determination through experimental constitutional processes to combat that evil. On the other hand, there are, as in all political and economic experimentations, certain side-effects and fall-out which might affect and hurt even honest dissenters and conscientious objectors”.
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In one of the judgments, the Supreme Court of India observed that “the evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection bill. This bill is meant for outlawing defection and fulfilling the above assurance.” The honourable Supreme Court of India referring to anti-defection law further noted that “the object is to curb the evil of political defections motivated by the lure of office or other similar considerations which endanger the foundations of our democracy”.
A political party is a representation of the collective will of part of an electorate. Any member of such a political party carries with him the burden of trust reposed by that particular electorate. He enters the Parliament triumphantly riding on the confidence of the electorate, shrouded in the manifesto of that political party and continues to enjoy the perks and privileges as a trust for his voters and party head. He acts as per their wishes. He is bound to protect and further their interests. He is not a lone wolf entitled to exercise unstructured and unqualified whims. He is subject to party discipline and directions. And in case he decides to part ways with his political party, he must resign and return to his electorate and seek a fresh mandate. This is how a democracy must function, at least on papers.
It is also an accepted democratic norm that a member of a political party, led by his conscience, may deviate from party directions, risking his seat in the Parliament. Dissent is the beauty of democracy but such dissent must be genuine and not driven by the “lure of office and monetary inducements”. So how can we deduce that the dissent is conscience driven or motivated by monetary inducements?
I will again quote from one of the above judgments which states that “unprincipled defection is a political and social evil. It is perceived as such by the legislature. People, apparently, have grown distrustful of the emotive political exultations that such floor-crossings belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom”. In this context, let us ask a few simple questions first from our worthy PTI members who have now openly admitted that they have changed their loyalties against some lucrative post-defection offer:
- a)Did these PTI members ever move to oust Imran Khan as Chairman PTI through an intra-party process?
- b)How many times did they abstain or vote against the party direction in any legislative business of the Parliament?
- c)How many times did the members use their right of freedom of speech in the Parliament or raised points of order against the Prime Minister?
- d)How many times did they register their grievances in the standing committees of the Parliament against the Prime Minister?
- e)How many times did they present their points of view in writing in the meetings of the party calling for deliberations and debates about the performance of the party?
If the answers to all the above questions is in the negative then let it be declared loud and clear that the defecting members are products of unscrupulous politicking and conscience trading. They must be castigated and equaled to the unconscionable lot not worthy of a seat in the Parliament or the parliamentary party they currently belong to. Any action taken by these political turncoats must be (a) condemned by all those who still maintain any sense to distinguish between the right and the wrong (b) be declared illegitimate and unlawful having no legal effect and (c) their names and faces be exposed and shamed on social media as a deterrent for all other such loyalty traders.
I have started witnessing some interesting comments and trends on social media
I am surprised that the overwhelming majority of the youth is strikingly opposed to this blatant horse-trading. There are respected columnists, media personalities, opinion makers and anchors, across the editorial divisions that are using the power of the pen or the word to express their utter disgust against this practice. Remember, the previously two no-confidence motions were from an era where print and electronic media was largely under control. Social media was not present then.
Things are different today. Social media is more powerful than the print and electronic media put together. People are thronging to Twitter in hordes to record their sentiments and are pointing fingers towards the visible political merchants, the benefactors as well as the invisible facilitators. I perceive that this trend will gain momentum in coming days and will become more assertive. Maybe Pakistan is at the cusp of something momentous.
An argument is being considered that in case members of the ruling party, in furtherance of the dictates of their hurriedly awakened conscience, in the larger interest of the state and for the welfare of the people, decide to vote in favor of the opposition’s motion of no-confidence, what are the options available under the law or otherwise to deal a pre-emptive blow against the trouble makers crossing party lines.
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There is a situation where the party head declares that a member has defected and till the time when the Election Commission disqualifies him. The role of the Speaker may come into play. Having been notified that a particular member has defected before the vote on the no-confidence motion takes place, can the Speaker, the custodian of the Constitution, the prestige of the National Assembly and the guardian of the democratic principles entrusted in him by the people of Pakistan, sit idle as an impotent by stander and allow the trading of members under him to go unabated?
Is this what the Constitution requires of him?
Justice Oliver Wendell Holmes once noted that “legislation may begin where an evil begins“. I think this aphorism perfectly suits our situation. I think the Speaker has powers under the Rules of Business (Rules) to use his authority to correct the wrong whenever he sees one. Reference can be made to rule 14 read with Rule 30 of the Rules that clearly provides that the members shall not act in a manner that erodes the sanctity of the House or acts in a manner which lowers the dignity of the House or act in any manner detrimental to the order and decorum of the House.
If unprincipled and unscrupulous defection that threatens the very fundamentals of our democracy, ethics and justice are not covered under the said Rules then God may have mercy upon us. The Speaker is empowered under Rules 28 and 29 of the Rules to pass appropriate orders that cannot be questioned provided they remain within the realm of law. The current political situation demands that the Speaker exercises all powers entrusted to him under the Rules to maintain the sanctity and dignity of the House.
I will conclude by using the following words of J.A.G. Griffith and Ryle (Parliament-Functions and Procedures, 1989 Edn. pages 118-119) “to abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against a party is disloyalty. To join with others in abstention or voting with the other side smacks of conspiracy”.
Faisal Zaman is a lawyer with more than 25 years of professional experience. He writes regularly on legal, social and political issues. He has authored a book on corporate affairs titled “The Corporate Structure of Private Companies – For Business Leaders, Startups and Entrepreneurs”. His legal practice involves transactional & contractual drafting, mediation, advisory and research assignments within one or multiple jurisdictions. He can be contacted at faisalzamanadv@gmail.com.
The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.