No taxation without representation

Learned Justice Munib Akhtar’s long order elaborating the court’s interpretation of Article 63-A argued that “the real problem is not the sullying of the ranks of a party by the continued presence of a defector. It is the vote cast, and the ‘external’ effect of the vote.”

As the real problem is not the sullification of pristine political parties, I want to shift our attention to the external effect of the decision on a fundamental matter of political and democratic importance: government spending and citizen participation.

Government spending is a matter of utmost importance to citizens: what is the government doing with our tax money? The question of what the government does with public money, our money, is one of the cornerstones of democracy (among many other cornerstones, including elections, that constitute democracy), with a foundational democratic demand being: no taxation without representation.

Arguments around Article 63-A and the ‘cancer of defection’ have focused on the election of the prime minister and the chief minister, or votes of (no-) confidence. Analysts have pointed towards the decision on Article 63-A as the beginning of the constitutional, political, and democratic crises that we are mired in. Justice Athar Minallah’s recent dissenting note considers the profound and far-reaching effects the decision has had on Pakistan’s politics. Justice Jamal Khan Mandokhail’s dissenting note on Article 63-A had already considered how not counting defecting votes “makes no sense, as there is no restriction in the constitution upon the counting of the votes so cast.” Yet, we have not considered how this decision alters the relationship of citizens in their say on how their money is spent.

Money bills are how the government allocates funding; they include the annual budget (referred to as the Demands for Grants and Appropriations). The question of whether supplementary grants are money bills that necessarily need to be put in parliament is open for debate. This is the argument in the Supreme Court at the moment, where the court is interpreting Article 84 as allowing the “Federal Government to obtain ex post facto approval and authorization from the National Assembly.” The federal government often makes such provisions and gets them approved with the succeeding budget. While the court’s argument considers certain nuances of related provisions, it is making the point that the federal government does not need the approval of the National Assembly to make this budgetary allocation.

In a sense, this is right but not for the reasons cited. The Supreme Court considers whether the rejection of such a bill by the National Assembly means that the government has “lost the confidence of the majority of the members of the National Assembly.” The Supreme Court makes it a point to remind us that even the attorney general appreciates the “serious constitutional consequences” of such a loss of confidence but what is not considered is that the external effects of the Article 63-A decision extensively limit such a possibility.

The right of most parliamentarians to lose confidence in the leader of the house has already been taken away. The court has simultaneously taken away the right of most parliamentarians to vote against the bill as Article 63-A also applies to money bills. The right has been taken from parliamentarians and given to political parties, where how authority is defined within a party is still a matter of confusion. The confusion is that we do not know which way the doctrine of unconsciousness will tilt when considering Article 63-A again. What will count as a ‘money bill’? Will the speaker still have the right to declare certain bills as money bills with unquestionable authority as stated in Article 73? Which article of the constitution will the court deem important? Do parliamentarians listen to party heads, parliamentary leaders, or themselves?

But here’s the important point: such rewriting of the constitution has an external effect; it has taken away the right of parliamentarians to express their views through a vote on the most fundamental of political problems: the spending of government money. In fact, the real problem is not that the right has been taken away but that it has the external effect of taking away their ability to affect the parliamentary process of money allocation. It has reduced the parliamentary process to a matter between far fewer individuals than those elected by the people – although how few they are depends on which interpretation of party authority in Article 63-A we ascribe to.

This has a severe effect on the democratic process. In a very practical sense, even if citizens vote for parties rather than specific parliamentarians (a proposition that only holds true if parties never seek electables), it is through parliamentarians that parties are held accountable to the electorate. If the parliamentarian has no capacity to affect the process in parliament, with democracy within parties practically non-existent, then parliamentarians can claim to the electorate that they do not have power because all the power in this matter has been given to the party.

In a world already constrained by global market forces, international financials organizations dictating how we should run our economy, and our severe dependency on public and private lenders, we have eliminated one of the primary avenues through a which a citizenry voices its demands and exerts pressure on the government: through the specific representatives they voted for. The parliamentarians who represent the party for them, the ones who took their vote on behalf of the party.

In the future, representatives that are directly elected by the people – parliamentarians – will have little to no say in the budgetary allocations of the federal government. This is a problem that concerns the very spirit of modern democracy, the spirit the court is very much concerned with, and shows how far-reaching the consequences of the Supreme Court’s Article 63-A decision really are. From limiting the power of parliamentarians to making party heads supreme to making parliamentary bare majorities supreme, the Supreme Court’s shifting interpretation of Article 63-A has left lawmakers in a conundrum. They either cannot do anything, or if they consider doing something, they risk how Article 63-A will be interpreted and severe consequences.

What if there are parliamentarians in parliament today that would rather vote for the election money to be allocated? Their right to express such views through their right to vote has already been taken away, leaving them only one choice: resignation. And we are already seeing the havoc that resignations can wreck on parliamentary democracy.

The writer is a former MPA of the Punjab Assembly.