SC on defections

Published May 18, 2022

THE judgement is monumental and will significantly influence Pakistani politics for years to come. After a nearly two-month wait, the Supreme Court has dilated on Article 63A of the Constitution to provide its opinion on how the votes of legislators who are deemed to have acted against their party’s directives should be treated. Through a 3-2 decision, the court has held that any legislator who defies their party’s voting instructions on the four instances highlighted in Article 63A ought not to have their vote counted at all.

This is a significant departure from a widely held view that Article 63A was quite comprehensive in detailing what qualifies as defection and how defectors should be dealt with procedurally. The dissenting judges took the same view, saying they felt any additional reading into Article 63A would be akin to rewriting the Constitution. The majority, on the other hand, held that Article 63A cannot be read in isolation from the rest of the Constitution, especially not without considering the rights of political parties under Article 17.

Read more: Imran thanks SC for 'safeguarding moral standards' of nation with Article 63-A verdict

The court, therefore, issued this order to act as a bulwark against “unconstitutional and unlawful assaults, encroachments and erosions” on the rights of political parties. The court has reasoned that since defection undermines the rights of political parties, any dissenting vote in the four instances detailed in 63A should not be allowed as the rights of an individual cannot be allowed to prevail over the rights of the party. On the matter of whether a defection may earn lifetime disqualification, the court has left it to parliament with a recommendation that it legislates a punishment that is sufficiently strong.

The court’s opinion has significant repercussions for the future as well as the present. In any future voting on the four specific instances highlighted in Article 63A, the order hopes to take away any temptation to indulge in the sale and purchase of votes. It also hopes to give political parties a greater sense of security. However, the same ruling will also prevent legislators from casting their votes according to their conscience, and it is not clear whether the court has taken this factor into account. All over the world, legislators vote against their own parties without hesitation if this is what their principles demand. Pakistan should be no different.

Read more: After SC opinion on Article 63-A, what's the status of Punjab CM election?

More immediately, however, the ruling turns attention to the role PTI defectors have played in recent assembly elections. The ruling has no immediate bearing on the federal government as dissenting PTI MNAs never actually voted against their party in the vote of no-confidence against Imran Khan. However, Punjab Chief Minister Hamza Shehbaz only secured victory in the province thanks to the support of the Jehangir Tareen and Aleem Khan groups in the PTI, and this order opens the door for legal challenges to be launched against the legitimacy of that victory.

Published in Dawn, May 18th, 2022

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