In a belated judgment, the Supreme Court of Pakistan has ruled that votes cast by legislators in violation of their party lines must not be counted while determining the outcome of a motion. The observation, in effect, has stopped future no-confidence motions. In fact, if the issue had been decided earlier, the Pakistan Tehreek-i-Insaf governments in the Centre and Punjab could still have been intact and the country would not have suffered the current political and economic mess.

The court also ruled that the Article 63-A of the Constitution was meant to protect the fundamental rights of a parliamentary party, and not those of defectors. However, it preferred not to answer a question about the applicability of lifetime disqualification under the Article 63-A, if a member is found guilty of defection, and let the parliament decide about it. “Political parties are an integral aspect of the bedrock on which our democracy rests. Their destabilisation tends to shake the bedrock, which can potentially put democracy itself in peril,” Pakistan Chief Justice Umar Ata Bandial said in a short judgment on the Presidential reference about 26 members of the Pakistan Tehreek-i-Insaf, who had voted against their party lines in the Punjab Assembly during the Chief Minister’s election.

In the split decision, Pakistan Chief Justice Umar Ata Bandial, Justice Ijaz Ul Ahsan and Justice Munib Akhtar agreed that dissident members’ votes should not be counted, while Justice Jamal Khan Mandokhail and Justice Mazhar Alam Khan Miankhel disagreed with the verdict. The two judges observed, “Any further interpretation of the Article 63-A, in our view, would amount to re-writing or reading into the Constitution and will also affect the other provisions of the Constitution, which has not even been asked by the President”.

According to the decision, dissident lawmakers are not allowed to vote against party lines on four occasions: the election of Prime Minister and Chief Minister; a vote of confidence or no-confidence; a constitutional amendment bill; and a money bill outlined under the Article 63-A.

“The first question referred by the President relates to the proper approach to be taken to the interpretation and application of the Article 63A of the Constitution. In our view, this provision cannot be read and applied in isolation and in a manner as though it is aloof from, or indifferent to, whatever else is provided in the Constitution. Nor can the Article 63A be understood and applied from the vantage point of the member who has earned opprobrium and faces legal censure as a defector by reason of them having acted or voted (or abstained from voting) in a manner contrary to what is required of them under clause (1) thereof,” the short order said. “Rather, in its true perspective, this Article is an expression in the Constitution itself of certain aspects of the fundamental rights that are inherent in political parties under Clause (2) of the Article 17. The two provisions are intertwined. In its essence the Article 63A functions to protect, and ensure the continued coherence of, political parties in the legislative arena where they are the primary actors in our system of parliamentary democracy, which is one of the salient features of the Constitution. Defections are one of the most pernicious ways political parties can be destabilised. Indeed, they can delegitimise parliamentary democracy itself, which is an even more deleterious effect. Defections rightly stand condemned as a cancer afflicting the body politic. They cannot be countenanced,” it added.

The order stated that the Article 63-A should not need to be invoked at all; its mere existence, a brooding presence, should be enough. The court noted that the vote of any member cast against party lines cannot be counted and must be disregarded, regardless whether the party head, subsequent to such vote, proceeds to take, or refrains from taking, an action that would result in a declaration of defection.

Proposing a harsh punishment for defectors, the court observed, “It is our view that a declaration of defection in terms of the Article 63-A can be a disqualification under the Article 63, in terms of an appropriate law made by parliament under para (p) of Clause (1) thereof. While it is for parliament to enact such legislation, it must be said that it is high time that such a law was placed in the statute book. If such legislation is enacted it should not amount to a mere slap on the wrist but must be a robust and proportionate response to the evil that it is designed to thwart and eradicate”.

The decision was warmly welcomed by former Prime Minister Imran Khan, who was voted out through a no-confidence motion, which could not have succeeded if the verdict had come before voting on the motion. Though none of his 20 party members had voted against him, yet their open defection to the opposition camp led to his ouster from power. However, at least 26 PTI legislators openly voted against the party in the Punjab Chief Minister’s election. The PTI feels its governments in the Centre and Punjab would not have fallen if the court also had taken suo motu notice of open horse trading by the opposition or given its opinion on the Presidential reference earlier.

Some legal experts say the court has changed the scheme of the Constitution entirely since now legislators won’t be able to vote out the prime minister in exercise of powers under the Article 95. “The head of a political party will now enjoy unbridled powers. In fact, the Leader of the House in the National Assembly (Prime Minister) will not face checks and balances and the concept of an elected dictator has been fortified,” they claim. Others say the law on defection clearly says that the vote of dissidents would not be counted in a no-confidence motion but still it took the court two months to reach the decision. Thus, the verdict failed to serve democracy and the nation, they argue.