Wednesday July 06, 2022

Interpreting 63A

By Editorial Board
May 18, 2022

‘Defections rightly stand condemned as a cancer afflicting the body politic. They cannot be countenanced’ – thus reads the Supreme Court’s short order regarding Article 63A. The clause refers to lawmakers’ defection, but has been seen as a somewhat vague clause, open to interpretation by the courts. The SC has now ruled that defecting lawmakers’ votes will not be counted. The five-member bench gave its verdict in a 3-2 decision, and has held that dissident member’s votes will not be counted, but that the question of a lifetime ban on floor-crossing members was too vague for the court to answer. The decision – based on a presidential reference in the SC – has left constitutional experts and the legal community divided and has ironically made the political crisis even more confusing than it already was.

By most legal opinion, taking away the right to vote in so much as saying that the votes of dissenting members will not be counted, the apex court’s decision makes Article 63A redundant: why would anyone vote against party lines when it will not even be counted – and yet they could be de-seated? If a member wants to exercise their individual freedom to choose how to decide on a particular issue, this interpretation of Article 63A has just taken away this autonomy of a parliamentarian. The spirit of 63A as per the 18th Amendment was to bring a balance between party discipline and the autonomy of an individual member. If an individual voted against party lines in three instances – the election of a PM or CM, a vote of confidence or no-confidence, and a Money Bill or constitutional (amendment) bill – he/she could face the defection clause. There was a penalty for going against the party line. In most countries, individual freedom is given more value than party loyalty but in our case, a balance was attempted given our past history of floor-crossing. With the SC verdict, that precarious balance may have been lost in favour of a tighter interpretation of the consequences of defection. It also leads to questions on how – if at all – a vote of no-confidence will ever be possible in such circumstances.

The current political crisis in the country has led to a surge of judicialization of politics, and the political repercussions of this verdict are also far-reaching. In the immediate, at least on the face of it, the federal government is safe as far as the dissenting PTI members are concerned as none of them exercised their vote in the no-confidence motion. The Shehbaz-led government is in a crisis not because of legal matters but because it has not been able to make some clear economic decisions. Today, as Pakistan goes into talks with the IMF, the coalition government has also decided – in a consensus with allies – that it is not ready to go for early elections and will take any tough decisions required to stay in power and figure out the economic mess. But the situation in Punjab is quite different. The ECP will decide on the fate of the 26 PTI dissidents from Punjab. If it de-seats them eventually, there will most likely be new elections for CM Punjab. If no candidate gets the magical 186 number, there will be a second round of election, where the one with the most votes becomes the CM. It seems that Punjab is doomed to be without a functional government for a few more weeks in case the ECP decides against the dissidents. As the PTI celebrates the SC verdict, the government seems to be stuck in an eternal political crisis. Under the circumstances, the government should not seem to be unsure of what to do next. If it wants to go into early elections, it should not give any mixed signals. If it wants to complete its tenure, then it should be unapologetic about it and go about its business. This confusion should stop now – the coalition government cannot stay in the PDM-Opposition mode any longer.