The events that happened in 2022, the motion of no confidence and the chief minister elections, have led to a fierce debate among lawmakers about Article 63-A. Article 63-A is initially about disabling a lawmaker on the grounds of defection. The defection would be done if, he votes against the directions of party policy or he abstains from voting.

The question here arises why there was a want for an anti defection clause in the constitution? What was the purpose of this amendment? Did floor-crossing and defection stop after this amendment? Are the directions to vote issued by the parliamentary party or the party chief of the political party to which he belongs? In its initial version, the 1973 constitution lacked an anti-defection clause. By inserting Article 63-A, the 14th amendment, by the second Nawaz Sharif era in 1997, added anti-defection measures to the constitution. “To avert instability in connection to the Government’s creation and operation,” was the stated purpose of this article.” The defection was given a very broad definition in this Amendment.

A legislator or member of a provincial assembly who, elected on the platform of a political party was defected if: (a) he disobeyed party rules; (b) he voted against the wishes of his parliamentary party, or (c) he chose not to vote on any bill. Determining the defection of legislators was the responsibility of the political leader. He then would inform the Chairman Senate, or Speaker of the National or Provincial Assembly. The latter had two days to notify the Chief Election Commissioner (CEC) of the decision, and the CEC had seven days to declare the member ineligible and his seat vacant. The ability to disqualify a lawmaker was granted to the party leader, and the CEC and presiding officers were little more than post offices.

The reasons for the defection made it easy to exclude a member from the group. Several constitutional amendments were made by General Pervez Musharraf, including the substitution of Article 63A, which was approved by parliament through the seventeenth amendment. The grounds for defection were drastically diminished by the revised Article 63A. Two events would qualify as a defection: (a) a member leaving his political party or joining another parliamentary party; or (b) a member voting against his parliamentary party’s wishes in an election for the leader of the house, a vote of confidence or no confidence, or a money bill.

As a result, a member might cast a vote on a non-monetary issue or a constitutional amendment bill against the wishes of the parliamentary party to which he belonged without triggering the defection clause. That was a significant change from the former rules. Not only that, under the seventeenth amendment, the declaration sent by the head of a party regarding the defection of his member to the EC through the presiding officer concerned was not binding on the EC, which could reject it or confirm it within thirty days. The decision of the EC could be challenged in the Supreme Court, which would decide the matter within ninety days.

The 18th amendment once more replaced Article 63A. The reasons for defecting are still the same. The decision is still subject to court review, and the EC retains the authority to accept or reject the referral. Unlike before, the head of the political party must file the defection reference rather than the head of the legislative party. We then transition from the law of defection to the politics of defection. In Pakistani politics, floor-crossing, also known as horse trading, has long been practiced.

The existence of a multiparty system, which typically results in a hung parliament, along with the unavailability of sound democratic conventions have been favorable conditions for shifting loyalties and floor crossing that is the main idea of Article 63A.. This game of musical chairs continues with a glaring absence of all standards, morals, and ethics. Before the fourteenth amendment was passed, it was commonly accepted that the absence of appropriate constitutional provisions was the main reason floor-crossing occurred. However, later events have refuted this idea.

Here are a few illustrations: In 2002, the PML-Q gathered a few PPP legislators to create a coalition in the National Assembly. PPP members were appointed to significant ministries like interior and defense. Unexpectedly, none of the PPP’s defecting members were ever the subject of legal action. The Balochistan Assembly’s single largest party, the PML-Q, partnered with the PPP in 2008 so that the PPP could establish the government. No legal action was taken against any of its members who left the room, by PML-Q In April, Prime Minister Imran Khan was voted out of power as he lost the trust vote mandated by the Supreme Court’s ruling. The cracks in the government were visible as the majority of the opposition were in favor of the no-confidence motion. On 9th-10th April, the national assembly summoned the session for votes of no confidence motion.174 members of the Opposition voted in favor of the motion leading to Imran Khan’s removal from the Prime Minister’s Office.

PTI claimed that the opposition did floor-crossing before the voting and that the votes of defected members should not be counted. The Supreme court gave its final verdict upon the case that the votes of defaulting members shall not be considered, without it being mentioned in article 63-A. That is judicial law-making or adding something to the constitution which is not written, a completely wrong act. These findings also created confusion on the matter of conferring the power to the party head about directions to vote because they contradict article 63-A as it states that the parliamentary party will issue such directions. In short, these findings are unconstitutional.

In the recent CM Punjab Elections, the majority of votes were in favor of the PTI. The Punjab assembly deputy speaker, showing a letter by the PML(Q) party head about disqualification of votes given against directions of the party head, disqualified 10 votes of PML(Q) in favor of PTI declaring Hamza Shahbaz as CM Punjab. Many questions were raised by the legislators about the declaration should be made by the parliamentary party not the party chief and even if they were defected, their votes will still be counted. The supreme court through a short order on 26th July 2020, struck down Deputy Speaker’s ruling on the election, declaring his “understanding and implementation” of Article 63A(1)(b) of the Constitution “incorrect and erroneous” as it announced the highly predicted verdict on PML-Q leader Chaudhry Parvez Elahi’s petition and declared Chaudhry Parvez Elahi as the duly elected chief minister of Punjab for securing 186 votes against the 179 of his opponent, PML-N’s Hamza Shehbaz.

Article 63-A is very straightforward in its rulings but the confusion about it is created by the various judgments by the SC about the matter of directions by the party head or parliamentary party in voting. These confusions may get cleared when the constitution is interpreted according to the text. The anti-defection clause was needed for legislators to stop floor crossing, defection, instability, and all encumbrances in the administration of government but couldn’t be possible so there should be a ground to it which includes permanent disqualification of a legislator so that he may not be able to continue his work in any of the political party or legislation.

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Umme Ruqqia

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