Pakistan Supreme Court’s 3:2 split decision that the votes of the defecting lawmakers will not be counted adds yet another black chapter to the country’s controversial judicial history during which it legitimized the actions of military dictators and even gave them the right to amend the constitution. This time, the honourable judges have gone beyond their role to interpret the constitution. They have effectively amended the constitution. Pakistan has become the only parliamentary democracy where a lawmaker’s vote will not be counted even where he/she may genuinely feel that his/her party’s position is against the interests of the people.
What is even more curious is that the judgment represents almost a U-turn by the honourable Chief Justice. On 24 March 2022, the CJ observed, “not counting a vote that has been cast during the no-trust proceedings against the prime minister would be "contemptuous", adding that the real question was how long a dissident MNA could be disqualified for.”
Did he change his mind as the political situation changed?
The dissenting judges, Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail, held that giving an opinion on the presidential reference was akin to "rewriting the Constitution".
The verdict has effectively barred the lawmakers to vote against the party line in four instances outlined under Article 63-A. These four instances are the election of prime minister and chief minister; a vote of confidence or no-confidence; a Constitution amendment bill; and a money bill.
The case was based on reference sent by President Arif Alvi in March for the opinion of the apex court when then prime minister Imran Khan faced a revolt from within his party after a no-confidence motion was submitted against him. The hearings continued for 58 days since its filing.
The verdict has effectively barred the lawmakers to vote against the party line in four instances outlined under Article 63-A. These four instances are the election of prime minister and chief minister; a vote of confidence or no-confidence; a Constitution amendment bill; and a money bill.
The reference presented two interpretations of Article 63-A and requested the court to advise which of them should be followed.
According to the first interpretation, "khiyanat (dishonesty) by way of defections warrants no pre-emptive action save de-seating the member as per the prescribed procedure with no further restriction or curbs from seeking election afresh."
While the second interpretation "visualises this provision as prophylactic, enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralising the effects of vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct."
The court seemed to have supported the second moralistic and populist “interpretation” and has given a verdict based on its opinions rather than anything in the text of the constitution, about how Pakistan’s parliamentary democracy ought to function with apparently little regard to what the constitution says.
The SC said defections were “one of the most pernicious ways” in which political parties could be destabilised, noting that they could also delegitimise parliamentary democracy. “Defections rightly stand condemned as a cancer afflicting the body politic. They cannot be countenanced,” the order said. Here again, the judges seemed to be taking a moral or political position without providing any sound legal basis to support their order.
The short-order stresses it has to do this to protect Article 17 which protects the right to form a political party free from unreasonable state restrictions. However, it does not guarantee a right to a cohesive political party, or a party free from dissent. The judgement has effectively silenced dissent within a party. The right to dissent is an integral and critical part of a democratic society. Silencing dissent is often the first step toward establishing a totalitarian or authoritarian system.
The SC order asserts that the collective right of a political party is greater than the right of an individual parliamentarian. However, it does not cite any article or clause from the text of the constitution to support or substantiate this position.
The honourable judges have assumed the mantle of political scientists and lawmakers have made highly subjective and political arguments. They have crossed the red line of judicial activism. They have gone beyond their constitutional role of interpretation because they are telling us what is good or bad for the future of parliamentary democracy.
Their judgement violates one of the most fundamental principles enshrined in the constitution. Why?
Here is the first paragraph of the constitution’s preamble:
“Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;
And whereas it is the will of the people of Pakistan to establish an order;
Wherein the State shall exercise its powers and authority through the chosen representatives of the people.”
By virtually amending the constitution, the SC judges have acted against what is the most sacred principle and foundation of the constitution: “the State shall exercise its powers and authority through the chosen representatives of the people.” Note it does not say parties or parliamentary heads. In Pakistan, many past SC judgements have ignored this integral part of the social contract between the state and the people. The people and their representatives are supposed to be supreme, not anybody or anything else.
Hassan A. Niazi, a distinguished international lawyer and lead counsel of Meta (Facebook) for the Asia Pacific region, commented on the judgement on Twitter. Niazi said the court has made a mess of things and has, as the dissent points out, rewritten the Constitution and gone so far as to possibly make votes of no confidence redundant. Niazi opined the court piled assumption upon assumption to create what he called 'the sky is falling' line of argument.
https://twitter.com/Hassan_A_Niazi/status/1526603025468379137?s=20&t=LfyBdTbyhXGNjxclnW-dSA
Reema Omer, a law graduate from Cambridge University and a Legal Advisor of the International Commission of Jurists, said that the SC majority opinion on Art 63A “is legally unsound” because the text of 63A is clear in that the lawmakers “who vote against the party line in certain cases are de-seated.”
Omer observed in her tweet, that the parliament, rightly or wrongly, did not say their votes will be discarded. “SC cannot re-write the Constitution”, she concluded.
https://twitter.com/reema_omer/status/1526649755635433475?s=20&t=LfyBdTbyhXGNjxclnW-dSA
Anti-defection laws are rare in established democracies but common in nascent democracies, where anti-defection laws are often defended as measures to consolidate a chaotic party system. India, for example, enacted different variants of anti-defection laws in 1973, 1985, and 2003. The 2003 law provides that a person can be disqualified from serving in parliament for “voluntarily giving up the membership of his original party” (2005: 965).
Furthermore, the Indian law permits parliamentary expulsion simply for voting (or abstaining from voting) “in the House contrary to any direction issued by the political party to which he belongs”. However, even in India, there is no law to not count a vote of a member against the party.
British Prime Minister Boris Johnson expelled 21 lawmakers from his Conservative Party for voting against his Brexit strategy in September 2019 after suffering a humiliating defeat at the hands of a coalition of opposition parties and Conservative rebels on a motion designed to pave the way for Brexit to be delayed. Nobody raised the question of whether those dissenting votes should have been counted because that is completely alien to how a parliamentary democracy works. Members can and do vote against the party and the laws or practices provide remedies against that.
Moreover, there can be very legitimate reasons for voting against the party’s directive. This judgement will stifle dissent and may turn Pakistan’s parliamentary democracy into a parliamentary dictatorship where this judicial amendment to the constitution might be used to silence dissent for the greater good of the public.
For example, no member from the treasury benches would be able to oppose a money bill which incorporates conditions imposed by the IMF even though the member might be of the view that those conditions are against the interests of the people of his constituency. This is absurd. This amendment is against the very spirt of democracy, parliamentary or not. It might take Pakistan toward an Orwellian democracy.