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Defection season?

July 08, 2019

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The writer is president of the Pakistan Institute of Legislative Development And Transparency.
The writer is president of the Pakistan Institute of Legislative Development And Transparency.

IS the season of defections here again? Media reports regarding 15 PML-N members of the Punjab Assembly calling on Prime Minister Imran Khan a week ago gave rise to speculations of possible defections or formation of a ‘forward bloc’. A federal minister claimed later that the Sindh governor could replace the PPP government in Sindh with a PTI-led government within 48 hours of receiving the prime minister’s go-ahead as several PPP legislators were ready to switch sides.

Read: 15 PML-N MPAs meet Imran at Banigala: PTI

Another federal minister said that several PML-N MNAs were also ready “with their joggers on” to support the PTI government. All this indicates that some kind of defections from political parties opposed to the party in power at the centre are being contemplated. The ruling party that depends on the support of its allied parties to maintain its majority and the government at the centre and in Punjab may fall prey to the temptation to lure opposition members to sustain itself.

Read: 37 PML-N MPAs have almost formed a forward bloc, claims Rashid

Opposition members may have their own reasons to revolt and support the government. Mostly, these reasons are not based on ideology or principles but on the politics of convenience. Many have skeletons in their cupboard and are, therefore, unable to withstand pressure from a government which is ready to pull all the stops. Lawmakers sustain their constituency politics by promising their constituents all possible help in their daily problems with the local administration or by arranging infrastructure development in their area. Both these categories of promises are almost impossible to keep if the provincial and federal governments decide to block the efforts of an Assembly member. Opposition members of the Assembly, therefore, despite legal provisions against defection, are vulnerable to the carrot-and-stick tactics of a government which is willing to use institutions like police, intelligence and local administration that it has at its disposal.

The law on defection is clear and leaves no room for ambiguity.

The law itself is very clear; there should be no ambiguity in the minds of those trying to play around it. Article 63A of the Constitution prescribes six conditions in which a member of a parliamentary party may be considered to have defected from the party, and, therefore, is subject to disqualification as a legislator.

The first condition is resignation from the party to which the legislator belongs; the second condition is joining another parliamentary party. The remaining four conditions relate to voting in the legislature contrary to the direction of the parliamentary party when electing the prime minister or chief minister, deciding a vote of confidence or no-confidence, debating a money bill like the budget and deciding a constitutional amendment. The Constitution still provides ample room to a legislator to exercise his or her independence without being seen as a defector. For example, legislators can vote for or against a bill other than the money bill or constitutional amendment bill according to his/her conscience without facing disqualification. Similarly, a mere meeting with the prime minister or chief minister and seeking help for development of one’s constituency does not mean that one has defected.

Article 63A in its current form, represents a balanced approach achieved after a number of iterations over the years. There was no defection clause in the original 1973 Constitution which was in line with the practice of several developed democracies such as the UK where, despite some celebrated cases of defection, no legal provision was introduced to disqualify the member who had defected.

It was during Nawaz Sharif’s second term as prime minister in 1997 when Article 63A was inserted in the Constitution through the 14th Amendment. This article, in its original form, was much more vast and stringent in scope. For example it provided for defection and disqualification of a legislator if he/she “(a) commits a breach of party discipline which means a violation of conduct and declared policies or (b) votes contrary to any direction issued by the Parliamentary Party to which he belongs”. Article 63A was substantially amended during Gen Musharraf’s rule through the Chief Executive’s Order in 2002 and later validated through the 17th Amendment in 2003. The amended provisions diluted the original stringency of the law and limited the scope of defection to only a few areas.

The provisions of Article 63A were further amended under the 18th Amendment in 2010 when the article was rephrased. Voting against party direction on a constitutional amendment bill was added to the scope of defection. The power of the parliamentary party head to send the declaration of defection to the presiding officer for onward dispatch to the ECP to notify the vacating of the seat held by the defecting legislator was given to the party head — a substantial change in favour of the latter as the head of a parliamentary party, if different from party head, could at some time join the defecting legislators.

Despite popular belief to the contrary, the Constitution does not have a provision for a ‘forward bloc’ in a parliamentary party. Even if a large number of members of a parliamentary party defects, the provisions of Article 63A will still apply to the defecting members as declared by the party head. The Indian constitution’s 10th Schedule, though broader in scope, contains a provision of two-thirds of total members of a parliamentary party merging with another parliamentary party and in that case both the members of the merging party and the remaining members would not be deemed to have defected.

The writer is president of the Pakistan Institute of Legislative Development And Transparency.

president@pildat.org

Twitter: @ABMPildat

Published in Dawn, July 8th, 2019