IN a split verdict on Presidential Reference seeking interpretation of Article 63-A of the Constitution, the Supreme Court has held that the votes of the defecting lawmakers shall not be counted and must be disregarded.
By a majority of three to two, the court observed that defections are one of the most pernicious ways in which political parties can be destabilized.
However, the two dissenting judges held the view that the reference has no substance as Article 63-A of the Constitution is a complete code in itself which provides a comprehensive procedure regarding defection of a member of Parliament and consequences thereof.
Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhel held that “in case, the Election Commission of Pakistan confirms the declaration sent by a Party Head against a member, he/she shall cease to be a Member of the House. As a result thereof, his/her seat shall become vacant.”
There is an unfortunate tendency of viewing and interpreting judgements of the judiciary in the prevailing political context and narrow interests, disregarding their long-term impact and their ability/inability to reform and improve the system and reaction to the latest verdict is yet another manifestation of such an approach.
There can be no two opinions that switching of loyalties on considerations other than national interests and sale/purchase of elected members is a curse and almost all democratic governments suffered due to manipulation of their members either by rival political forces or invisible hands.
No doubt, the majority verdict has further complicated the prevailing muddy political scenario, creating ambiguities and raising possibilities of gains and losses for different players both at the Centre and in the province of Punjab.
It is also argued that the opinion of the apex court on the presidential reference is advisory and not binding and that it will not have retrospective effect.
The judgement will surely increase difficulties of the coalition government, especially in the case of Punjab where numbers game is highly delicate.
PTI leadership, which previously was lashing out at courts day in and day out, is expressing gratitude of the apex court for its landmark verdict on the issue of defecting members and former Information Minister Fawad Chaudhry has gone to the extent of demanding resignations both from Prime Minister Shehbaz Sharif and Punjab Chief Minister Hamza Shehbaz.
Things might become clear during the next few days and some affected and interested parties might also approach courts again for clarifications.
However, irrespective of temporary losses or gains, the verdict on the presidential reference might help curb the menace of horse-trading and thereby help stabilize future governments.
Benefits of the judgements would surely accrue to the system but it has also raised serious and alarming questions that are agitating minds of not only legal experts but also the layman.
The country has an elaborate Constitution but whimsical, politically motivated and need-based interpretation of different provisions of the otherwise sacred document have sent a dampening message to the people of Pakistan that the country has been rendered somewhat ungovernable.
A majority of constitutional and legal experts believe Article 63-A was quite clear but interpretation of the top court has turned it ambiguous as it is not clear who will determine ‘defection’ and on what basis when no voting against party lines has taken place.
No confidence is a constitutional concept not just in Pakistan but also in other countries for bringing a change in a democratic dispensation but the interpretation of the Article has practically rendered this constitutional scheme of things as an impossibility as there is virtually no procedure left in the Constitution to remove a Prime Minister who will have incentive to become an autocrat.
It has rightly been pointed out by a prominent lawyer that the decision comes at the cost of other provisions of the Constitution that are no less central to democracy.
It is also argued that the court has infringed upon the authority of Parliament by interpreting a clear article in a manner that amounts to re-writing the Constitution.
As the verdict will have serious ramifications for the system and has raised questions about supremacy of Parliament, in all probability, it will have to be revisited at an appropriate moment of the history.
