TWO judgements this past week have rewritten the rules of Pakistan’s parliamentary democracy. First, the Supreme Court ruled that voting by lawmakers against party directions in the four scenarios laid out in Article 63A automatically nullifies their vote. Then, the Election Commission of Pakistan ruled that the 25 PTI lawmakers who voted in favour of PML-N’s Hamza Shehbaz as Punjab chief minister would be de-seated for defying their party — even if the technical prerequisites for their dismissal had not been met.

A dissenting vote, therefore, did not only become worthless, it also became a sure-fire way of losing one’s seat in the legislature.

Read: Lotas vs objectors

According to observers, the two rulings taken together seem to have effectively rendered Article 63A ineffective. The article in question had been inserted in the Constitution to identify the circumstances in which lawmakers would be deemed to have formally defected from their party and to lay out the procedure for having them ejected from their seat.

Before the Supreme Court applied its own reading of Article 17 to identify the ‘spirit’ of Article 63A, the law did not indicate that a defector’s vote would not be counted, thus allowing individuals whose principles discouraged them from following the party line to exercise their right to participate in matters of national import.

Secondly, Article 63A had also laid out certain procedural rules to determine if defectors had indeed acted in bad faith. These included a notification of the party’s directions to its lawmakers as well as a provision asking party heads to formally seek an explanation from the defectors as to the cause of their violation of party directions. However, the ECP’s decision seems to have deemed these measures inconsequential, thus denying defectors any protection from unfair disqualification.

To have to enforce loyalty to the party, even if in just four scenarios, is a sign of structural weaknesses in the democratic system, which are not for the Supreme Court or the ECP to rectify. By setting aside the existing law to prescribe their own ‘solutions’ to a political problem, the two institutions have not really solved the crisis at hand.

Instead, the Punjab government has been thrown into further chaos, which is only bound to invite further litigation in the days to come. If the political leadership’s past legislative attempts to address defections were considered insufficient, the matter should have been remitted to parliament.

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

The beauty of Pakistan’s legislative system is that it requires wide consensus when legislating on constitutional matters. Revisiting the defection laws with the collective wisdom of at least two-thirds of parliament would have yielded a more nuanced updating of Article 63A. Political parties understand the subtleties of domestic politics better than any court does. It should have been left to their judgement to negotiate a way out of this mess.

Published in Dawn, May 23rd, 2022