The Supreme Court of Pakistan has been called upon to direct the country away from a political blind corner. It is certain that with the matter before a larger bench of the Supreme Court, the country would be able to avoid a legal blind corner. The intention of Article 63 (A) would be interpreted with clarity by the apex court. The matter at hand, of course, is the Combined Opposition’s vote of no-confidence. The Supreme Court in remarks ahead of the larger bench hearing counselled the political elite to forego their ‘ego’, apparently referring to the politician’s conduct in affairs pertaining to the polity and governance.
There are two matters of importance in relation to the vote of no-confidence. The first is the question of rulership in Pakistan and the Muslim World in general. The second is the issue of freedom to vote according to one’s conscience. Starting from the wheeling-dealing during the 1950s, the history of a certain Republican Party, to the three Coups d’ etat, significant milestones included the promulgation of the 1973 Constitution, which laid down Westminster-style parliamentary democracy as the form of government for Pakistan. In 1985, General Ziaul Haq’s non-party elections dealt a blow to the party-based democratic system through the injection of money or other inducements as affiliation beyond party loyalty, which should be paramount for a party-based parliamentary system to function.
In 1986-87, the return of Benazir Bhutto was hailed by many as the supposed beginning of a new era of democratic enfranchisement and socio-political emancipation. A vote of no-confidence was moved against her government in 1989 and failed. But the phenomenon was noticed where the party members could change loyalties midstream. The culture of shifting loyalties introduced in 1985 party-less elections was blamed for the phenomenon later termed as Changa Manga and Lotacracy. So, when the musical chairs of the 1990s ended, and everybody understood the futility of packing off elected governments, the legal options available to make it happen were gradually removed. Under the 18th Amendment on April 8, 2010, Article 58 (2b), which allowed the head of state to dissolve a political government was removed, and subsequently, Article 63 (A) was amended to prevent floor crossing to avoid the fall of government via party member’s defection.
When the musical chairs of the 1990s ended, and everybody understood the futility of packing off elected governments, the legal options available to make it happen were gradually removed.
The five-year rule for a government was also reaffirmed by the two political parties PML (N) and PPP in the Charter of Democracy. But the current impasse is evidence that the foolproof completion of five years can still be put in doubt. Is it because the government in question is the party-crasher Imran Khan’s PTI? It might be true that PTI might have used vitriol in the speech against the two older parties, but it should also be noted that the older parties have treated Imran Khan as an intruder and unwelcome addition. They are not willing to extend to Imran Khan their own rule of five-year tenure which they have decided amongst each another. They do not believe that Imran Khan’s government is sufficiently democratic to deserve the same treatment as they deem to be the sole right of their exclusive club of pure democrats and bona fide political parties: the right to complete five years.
The stability of tenure takes the discussion back to the right to rule and the issue of succession in Islam. The succession issue started in the early days of Islam and persists to date. Even though it is much better since the days when the sword was the rule and norm to settle these matters, all problems are yet not resolved. We do have a constitution, which is drafted with the purpose to lay down the rules about who rules the country. The Constitution and constitutional court of Pakistan must be able to settle this issue for good.
What is the problem exactly? It is the ideological right of individual members to defect in case of disagreement during a significant vote in the assembly. This has been repeatedly described by PTI’s rebellious members as their call of conscience. Article 63 (A) clearly lays down the instances where the party member’s voting behaviour falls within the law’s ambit. These include disobeying party leadership during a vote of no-confidence. Other instances include money and constitutional bills etc. The moral reasoning behind the restriction on voting according to one’s conscience and insistence on following the party line lies in the plenipotentiary role of a party member within the party and the assembly on behalf of the people. The will of the people, after all, is sovereign in a democracy.
If the law is interpreted in terms of the spirit of prevention of floor crossing and horse-trading, then the party leader should be able to disqualify the concerned member just after first counting of the votes and prior to the finalization of the voting results. This is because it cannot be the intention of the law to shut the door after the horse has bolted. Considering a prohibitionary interpretation of the law’s intent, the action of the party leader of sending a personally drafted declaration about the party member’s defection to the party member, the Speaker, and the Election Commission, should be considered enough to disqualify the concerned member along with his vote, which would automatically stand rejected. An unequivocal interpretation of the law at this juncture would resolve the issue, otherwise, it would leave the question of floor-crossing open to be resolved at some later date. This would be harmful to the stability of Pakistan’s party-based system predicated on the predictability of tenure.
The writer teaches defence and strategic studies at the Quaid-i-Azam University, Islamabad.