Daily Times

The constitution of a country isn’t a perfect document. It is true for Pakistan as well. It is for this reason the theory of constitution being a “living document” was created. It allows the judges to interpret the document in accordance with the socio-political climate of an era. At times, judicial interpretation isn’t what the framers had envisaged – but such a judicial construction upon the constitution becomes necessary to bring constitutional provisions in conformity with the values of a modern man.

There are several provisions in our constitutions that are relics of a by-gone era and have no space, or rather, should have no space, in today’s democratic Pakistan. One such provision is disqualification of the members of the national assembly on ground of defection (Article 63A). In the present form, it allows the Party Head to declare that a member has “defected from the political party” if that member “votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party”, in relation to; “(i)election of the Prime Minister or the Chief Minister; or (ii)a vote of confidence or a vote of no-confidence; or(iii)a Money Bill or a Constitution (Amendment) Bill”. A consequence of such a declaration by the Party Head is that the member declared to have defected ceases “to be a member of the House and his seat” becomes “vacant”.

Disqualification on ground of defection was first introduced in the constitution through a fourteenth amendment. The original text on defection was broadly worded giving greater leverage to the Party Head to expel the member. The text on defection stated; a “member of a House shall be deemed to defect from a political party if he… “(a) commits a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies, or (b) votes contrary to any direction issued by the Parliamentary Party to which he belongs, or (c) abstain from voting in the House against party policy in relation to any bill.”

The eighteenth amendment seemingly diluted the language and introduced three scenarios that could attract grounds of defection. However, the three scenarios i.e., election of the Prime Minister and Chief Minister, a vote of confidence and a vote on money bill or amendment to the constitution, have such a wide import, that they cover in their breath, all political and policy decisions.  And with these overarching restrictions, who would dare to disagree with any parliamentary direction in the House.

There is no room in the political parties to speak one’s mind, and we can go on and on about the political culture within the parties – but more pertinently, there is no hope for dissent on the floor of the House

Our political history has witnessed horse trading in the past. Ghulam HaiderWyne was overthrown by Watoo’s defection in 1993. Benazir only survived a vote of no confidence in 1989 by winning over MNAs from the opposition benches. That being the case, the defection clause, regardless of its title, because of its wide scope, is not aimed to put an end to defections. It has been introduced and amended with time, to impose strict consequences for those who disagree with the leaders of the parliamentary party – to teach them a lesson. It is vindictive in spirit and authoritarian in letter. Ironically, to be a democrat in the parliamentary party in Pakistan, and survive as such, you must always say yes – to your party head!

In Pakistan’s democracy; there is no democracy within the parties on the floor of the House or outside. There is no room in the political parties to speak one’s mind, and we can go on and on about the political culture within the parties – but more pertinently, there is no hope for dissent on the floor of the House. The day one disagrees with the directions issued by the parliamentary party on key issues; the member could face expulsion and worse still, lose his or her seat. No challenge, due to the defection clause, can be thrown for the party leadership. Our parties’ today function on the “pleasure of the King!” (Party Head).

The challenges thrown at the fourteenth and the eighteenth constitutional amendments were dismissed by the Supreme Court. The Court was deferential towards saving the amendments – rightly so. It isn’t the court’s job to fix our imperfect document. We need to restart the debate on the defection clause in the political arena. The secret to service-delivery in both the UK and US is dissent within the parties with aspirants challenging for the party leadership. We have seen illustrations of dissent (and leadership-challenge) lately both among the Democrats in the US during the Presidential election and among the Conservatives around Brexit. The parties assume a new lease of life every time they undergo such phases of heightened dissent. Our parties are stuck in the era they were established. And the defection clause explains the disconnect of our political parties from the populace!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn