Who should decide the fate of Article 63A?

In Blog, National Security
April 20, 2022
Gulrukh Nafees
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Defection clauses are commonly found in nascent democracies to deal with the vices of floor crossing and horse trading. This is certainly not the first time Article 63A has come into the limelight (with the recent presidential reference filed by Arif Alvi). While the law has its proponents it still remains a subject of debate

Defection clauses are commonly found in nascent democracies to deal with the vices of floor crossing and horse trading. This is certainly not the first time Article 63A has come into the limelight (with the recent presidential reference filed by Arif Alvi). While the law has its proponents it still remains a subject of debate with many lawyers and academics arguing that a parliamentarian is only bound by his own conscience hence any restrictions on a member to vote or abstain from voting is against the essence of parliamentary democracy. Thus, with all the speculation surrounding this law it becomes all the more important to trace its historical background and ascertain if it serves any useful purpose.

Article 63A was introduced by the 14^th amendment in 1997 which gave the parliamentary leader of a political party the power to initiate proceedings against a party member in parliament for voting against party lines in the election of prime minister or chief minister, vote of confidence and no confidence and money bills. This was challenged in the case of Lawyers Front for the Defense of the Constitution v. Federation of Pakistan on grounds of being undemocratic by way of giving parliamentary leaders unfettered powers, however the claim failed and it was ruled that article 63A did not violate any principle of democracy.

Subsequently the law underwent some changes in the 18^th amendment, constitutional amendments was added as a category to the list in which a parliamentarian could not vote against party lines. Moreover, the amendment added that the party head does not necessarily have to be a parliamentary leader but “any person, by whatever name called, declared as such by the party”.

These changes for obvious reasons did not sit in ease with lawyers and subsequently brought under consideration in the case of District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401). Arguments were made along the lines that a parliamentarian was a chosen representative of the people and not of a political party or party head and that the notion did not align with the principle of democracy. In fact it consisted a constitutionally mandated pressure to vote on an amendment bill in accordance with party lines and not in accordance with his fiduciary duty as an elected representative of the people. Thus, in making any decision a parliamentarian could not allow party considerations to bear influence on him.

It was further opined that a party head who wielded influence over a parliamentarian may not be a member of parliament or even worse ineligible to be elected as a parliamentarian yet able to exert influence on the content of the constitution. The preamble exerts that it was these representatives who shall possess the power amend the constitution because an amendment which put directly chosen representatives of people under constitutionally permitted influence of person outside could not be seen as furthering the principle of parliamentary democracy.

However, this case also met the same fate as the one prior to it. With the judge’s, ruling that article 63A was introduced to address the perennial problem of horse trading and floor crossing and that the legislation had its safety mechanisms in place. Lastly, they pointed out that 63A before being amended contained stronger and draconian provisions with respect to disqualification therefore it made no sense to strike it down.

Nonetheless, backers of anti- defection clauses rarely point out that party leaders may value such laws for darker purposes- to bolster control of their members. Also, such laws do not align with constitutional rights of freedom of speech (Art 19) and association (Art 17). As far as democratic principles are concerned Karvonen’s study of statutory party laws reveal “the general impression is that in certain respects, the degree of democracy is clearly associated with the occurrence of restrictions on political parties. The most important line of demarcation seems to run between established democracies and other states. Established democracies display few restrictions on parties, all other groups of state considerably more.”

Moreover, scholarly analysis shows that relaxation of anti – defection clauses has been generally favorable. South Africa and New Zealand are two such countries that have abandoned their anti- defection laws, hence, in this regard Joubert’s thesis on representation and floor crossing in south Africa reflects that “seen from a historical perspective floor crossing has more positive than negative effects”. His analysis also finds support with Booysen who claims that “comparative studies are clear that the efforts to restrict defection frequently end in travesty”.

It therefore, now rests upon our law makers to see if article 63A is doing us more harm or good and then subsequently decide its fate of whether it should stay or a complete overhaul would be beneficial for the democratic interests of this country.