A step too far

The Supreme Court recently released its detailed judgment on Article 63A. Written by Justice Munib Akhtar, the judgment holds that when a parliamentarian votes contrary to party directions on matters like the budget and votes of no-confidence, not only is the parliamentarian subject to expulsion but their vote itself is to be disregarded.

Justice Akhtar begins with the contention that judges are freer when it comes to constitutional interpretation than with respect to statutory interpretation. This is because, while statutes “are designed to meet the fugitive exigencies of the hour,” constitutions must “endure for ages to come.” He then suggests that the line between interpretation (permissible) and “reading in” (impermissible) is so fine as to be irrelevant.

The judgment continues by discussing Article 17(2) (re every citizen’s right to form a political party) and notes that this provision has been interpreted purposively and expansively by the Supreme Court. In the 1988 Benazir Bhutto case, the court scotched General Zia’s plans for non-party elections by saying that the right to form a political party necessarily meant the right to contest elections through them. In 1989, the court held that political parties had the right to be allocated specific symbols so that they could properly fight elections. Finally, the famous 1993 case of Mian Nawaz Sharif held that Article 17(2) included the right of a political party to govern and exercise power.

Justice Akhtar reaches multiple conclusions on the basis of this historical survey: first, that the rights recognized by Article 17(2) are not just the rights of citizens, but the independent rights of a political party in and of itself; second, that these rights must be interpreted to promote the healthy operation of political parties; third, that the defection of legislators negates this “healthy operation”; and fourth, that therefore Article 63A should be interpreted to exclude the votes of defecting parliamentarians. Only in this way, per Justice Akhtar, can one ensure that Article 63A functions in its true spirit – so that it is never needed.

Let’s begin with Justice Akhtar’s theory of constitutional interpretation. Yes, constitutions are normally interpreted expansively. But as noted by the US Supreme Court in Hurtado v California, that is because “the language of the Constitution does not change.” More importantly, Article 63A is not an instance where the language of the constitution has remained unchanged. In fact, quite the opposite.

As originally promulgated, Article 96(5) of the 1973 constitution provided that for a period of 10 years, a vote of no-confidence against a prime minister would require a majority of the total membership of the National Assembly and that the votes of defecting MNAs would be disregarded if contrary to the voting majority of their political party.

In 1977, the constitution was suspended by General Zia. When it was restored in 1985, this entire provision regarding votes of no-confidence was excluded. Thus from 1985 onwards, there was no express constitutional prohibition on defection. That is perhaps why the period 1988-1997 saw a veritable epidemic of ‘horse-trading’, which epidemic was repeatedly and strongly condemned by the Supreme Court in a series of cases.

In 1997, the 14th Amendment added Article 63A to provide for disqualification in the event of breach of party discipline on any issue. This time, however, there was no mention of votes being disregarded. In 1998, the Supreme Court upheld the 14th Amendment via a 6-1 judgment but diluted it (on the grounds of freedom of speech) to say that members of parliament could only be disqualified for breaches of party discipline in relation to parliamentary proceedings, not generally. The lone dissenter argued that Article 63A was entirely unconstitutional. Nobody mentioned the possibility of votes being disregarded.

In 2003, the 17th Amendment introduced text similar to the current Article 63A. The new Article 63A provided that parliamentarians could be disqualified if they voted contrary to party directions, but only in relation to votes of confidence and no-confidence, elections of the prime minister or chief minister, and money bills. In 2010, the 18th Amendment further modified the text of Article 63A to include bills amending the constitution.

Justice Akhtar’s judgment does not address that legislative history. In particular, it never refers to the fact that the requirement to discard dissenting votes was present in the original 1973 constitution, then excluded by General Zia, and then never re-inserted despite multiple amendments to the Constitution regarding that same issue. Instead, the historical references it makes are to the various Supreme Court judgments condemning defection, all of which are from the period 1992-1998 (judgments followed by three separate amendments to the constitution dealing specifically with defection).

For example, the judgment refers repeatedly to Justice Shafi ur Rehman’s judgment in the 1992 Khwaja Tariq Rahim case. That judgment condemns parliamentary defectors in part on the basis that such defections render the voter helpless because “In the normal course, the elector has to wait for years, till new elections take place, to repudiate such a person [while in] the meantime, the defector flourishes and continues to enjoy all the worldly gains.”

This specific problem was fixed in 2003 through the addition of Article 63A and is no longer an issue. Now, a defector can be unseated relatively quickly following his dissenting vote and no longer “flourishes and continues to enjoy all the worldly gains” pending the next election. Similarly, the judgment does not discuss the fact that the constitution was amended three times to deal with the problem of defectors (1997, 2003 and 2010) and that in each case, no express requirement to exclude dissenting votes was inserted, even though the original 1973 constitution had contained such a provision.

The importance of historical context is brought out by the very issue most often cited by Justice Akhtar, the right to privacy. Currently, the right to privacy means something very different in a world of social media and electronic eavesdropping than the traditional physical sanctity accorded to a person’s body or home. It is therefore a topic on which courts have no option to engage in the delicate exercise of elaborating constitutional protections for a new world.

This case is different. Here, the court was not faced with a new topic on which it had to divine the intention of the framers of the constitution. Instead, it was faced with an established and identified problem repeatedly addressed in recent years by parliamentarians, which history the judgment notes was repeatedly brought to its attention.

There are other issues in the judgment. For example, it brushes aside the possibility of a conscientious objector on the basis that no actual example of such a defector was ever cited before the judges. At the same time, the judgment also rejects the possibility of an elective dictatorship by referring to the equally theoretical possibility of: (1) a split between the party head and the head of the parliamentary party; and (2) the removal of an unpopular prime minister through a vote of confidence requested by the president. In other words, the judgment rejects one argument (conscientious objectors) as hypothetical but defends its understanding on the basis of an equally theoretical scenario.

Second, I respectfully disagree with the conclusion that to vote contrary to party directions is the negation of democracy. Pakistan is a representative democracy. Each MNA represents a constituency of hundreds of thousands of voters. It is that MNA’s fiduciary obligation to represent the interests of his voters, which obligation ultimately trumps all other obligations. The mere fact that MNAs have been elected on a party basis does not mean that the MNAs’ obligation to their party trumps their obligation to their voters. In my view, that is why the only punishment expressly provided by Article 63A is de-seating. If and when an MNA is de-seated by his/her party, he/she has the right to seek vindication from the voting public. It is that voting public which will then either justify the dissenting vote or punish the defector. If the dissenting vote is automatically discarded, the voting public never gets to have a say on the issue.

One last point: the judgment states that the “the ideal position is that [Article 63A] need not be actually invoked at all” and on this basis finds within Article 63A, an additional “deterrent effect” regarding the discarding of votes. I concede that a world without any defections may well be a better world than a parliament riven with defections. But, in my respectful opinion, that ‘ideal’ is not the ideal expressed by the constitution itself.

The line between constitutional interpretation and constitutional rewriting may indeed be difficult to identify, but it is not necessary to draw that line with precision. To paraphrase Coleridge, CJ in Southport Corp v Morriss, all one needs is to determine which side of any reasonable line a judgment falls. In this case, my submission is that it falls on the wrong side.

Twitter: @laalshah

The writer is a lawyer of the Supreme Court. The views

expressed in this column do not represent the views of his firm.