Defection clause: aren’t we moving in a circle?
The writer is a senior journalist and a Jefferson Fellow. He can be reached at asif.ali@tribune.com.pk
Remember the 14th amendment to the Constitution? Passed in 1997, during Nawaz Sharif’s second term as Prime Minister, the mentioned amendment barred floor crossing by way of giving party leaders the power to dismiss any of their legislators on speaking or voting against the party line. The amendment – introduced into the 1973 Constitution under Article 63-A – effectively meant that no Prime Minister could be dismissed through a no-confidence vote. A couple of months earlier, the same government had passed the 13th amendment to the Constitution that clipped the presidential powers to send a prime minister packing by dissolving parliament under the infamous 58-2(b) introduced into the Constitution by military dictator Gen Ziaul Haq.
The 1990s was a decade that succeeded an 11-year-long martial law, with dictatorial tendencies still embedded in unrepresentative power centres. Since there was no constitutional bar on political defections, there was enough room for making and breaking governments by buying loyalties. Palace intrigues thus ran rampant; and wheeling and dealing and politics of blackmail were pretty common. No wonder the decade saw three governments – two led by Benazir Bhutto and one by Nawaz Sharif – dismissed through the use of presidential powers. Political uncertainty was at its zenith during what is fittingly termed the lost decade.
It was in this backdrop that the 13th and 14th constitutional amendments – which respectively withdrew President’s power to dismiss government, and ruled out floor crossing – were passed and widely welcomed as steps strengthening the hands of elected representatives, and providing greater stability to democratic governments.
There was, though, a flip side to the story too. The two amendments together gave the Office of the PM unlimited powers and removed all checks and balances, virtually leaving no way the chief executive of the country could be legally dismissed. Since Nawaz Sharif had, for his second stint as PM, returned to power with a two-thirds majority, his government enjoyed the luxury of legislating literally at whims. It’s because there was no room for dissent within the parliamentary party in the presence of Article 63-A inserted in the Constitution through the 14th amendment.
The bane of Article 63-A took no time to surface. It so happened that the Nawaz Sharif government, in August 1998, introduced a 15th amendment to the Constitution whereby it sought to impose Sharia as supreme law in Pakistan, in light of the Objective Resolution. While the opposition of the time readily accused Sharif of trying to become Amirul Momineen – which would have meant a lifetime rule – dissenting voices also emerged within the PML-N parliamentary party. But since the defection clause allowed no room for dissent, the 15th amendment sailed through the National Assembly. Mercifully though, it failed to cross the Senate hurdle.
Thus dawned the light that a tweak in the defection clause was warranted – only to happen years later with the passage of the 18th constitutional amendment in 2010. Now, the same clause allowed a legislator to cast a ‘vote of conscience’ against the party line, albeit risking disqualification from the elected house if proceeded against by the head of the party he belonged to.
And today the defection clause i.e. Article 63-A exists in the same form. But the said article – even with the ‘much-needed’ tweak – is still up for debate, with one side of the divide advocating tightening the screws further on legislators through lifetime disqualification so as to “nip the evil of floor crossing in the bud once and for all”.
But aren’t we seeking to go back to where we had started under Nawaz Sharif in 1997? Aren’t we pursuing a strict party discipline that leaves no room at all for a PM to be dismissed constitutionally – something we have already experienced only to backtrack on later? Aren’t we moving in a circle?
Indeed, the choice here is hard – either allow a ‘vote of conscience’ and, in the process, legalise change of loyalties for political gains; or ban a vote against party line, rendering parliamentary parties a mere rubber stamp. Both undesirable options!
The fact of the matter is that we are trying a quick fix to a problem that is stubbornly entrenched in our political culture. We are applying a wrong [constitutional] tool to fix a flaw that needs to be tapered away under an evolutionary process.
Let’s allow the bitter pill of defections as prescription for our political parties to learn – the hard way – to stay away from candidates with dubious credentials and suspect loyalties.
Published in The Express Tribune, March 31st, 2022.
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