THE decision of a breakaway faction of the Pakistan Muslim League-Q, called the Unification Bloc, to side with the ruling PML-N in the Punjab Assembly has already generated intense debate as to its political and legal ramifications. One view — notably of the Pakistan People’s Party (PPP), which hitherto was the junior coalition partner in Punjab, and the PML-Q — is that the members of the Unification Bloc have not only brought a bad name to democracy but also made themselves liable to disqualification under the relevant constitutional provisions. The counter view — of the PML-N and the Unification Bloc — is that the defection clause of the constitution has not been violated and that the decision will strengthen rather than weaken democracy.

The 1973 constitution in its original form did not have an anti-defection clause. It was the fourteenth amendment, piloted by the second Nawaz Sharif government in 1997, that incorporated provisions against defection into the constitution vide insertion of Article 63-A. The purpose was “to prevent instability in relation to the formation and functioning of [the] Government.”

The fourteenth amendment defined ‘defection’ in a very broad sense. A parliamentarian or member of a provincial assembly elected on the ticket of a political party was deemed to defect if (a) he violated party discipline, (b) voted contrary to directions of his parliamentary party, or (c) abstained from voting against party directives on any bill.

It was for the head of the political party to determine whether any of his legislators had committed defection on any of the above grounds. The decision of the party head would be conveyed to the Chairman, Senate or Speaker of the National or Provincial Assembly (the presiding officer) as the case may be. The latter was required to forward the decision to the Chief Election Commissioner (CEC) in two days and the CEC had to declare within seven days the member disqualified and his seat vacant.

Thus under the fourteenth amendment, the powers to disqualify a lawmaker were effectively vested in the party head and the presiding officers and the CEC were not more than post offices. Besides, the grounds of defection were such that a member could be shown the door most conveniently.

General Pervez Musharraf made several changes to the constitution including substitution of Article 63A, which parliament accepted vide the seventeenth amendment. The new version of Article 63A significantly diluted the grounds of defection.

The defection would be deemed to have taken place on two grounds: (a) when a member resigned from his political party or joined another parliamentary party; or (b) or voted or abstained from voting contrary to the directions of his parliamentary party in case of election of the leader of the house, vote of confidence or no-confidence, or a money bill.

Thus, a member could vote contrary to the orders of the parliamentary party he belonged to on a non-money bill or a constitutional amendment bill without invoking the defection clause. That was quite a big departure from the earlier provisions.

Not only that, under the seventeenth amendment, the reference sent by the head of a parliamentary party regarding the defection of his member to the Election Commission 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 three months.

Article 63A was again substituted by the eighteenth amendment. However, changes made are not substantial. The grounds of defection remain the same. The EC retains the power to turn down or confirm the reference and the decision remains open to judicial review. Yet one significant change has been made: The defection reference is to be filed by the head of the political party rather than the head of the parliamentary party as was the case previously. However, Article 63A incorporated by the eighteenth amendment shall take effect after the next general elections. Until then its older version — the one introduced by the seventeenth amendment — governs floor crossing.

Coming back to the instant case, two factors have in the main divided the legal opinion. One, it is not a handful of members of the PML-Q in the Punjab Assembly who have sided with the PML-N but the majority of the members. Two, under Article 63A, as applicable, the reference against members who have defected is to be sent by the head of the parliamentary party and not the political party. Now the parliamentary party, though an offshoot of the political party concerned, is distinct from it.

For instance, the head of a parliamentary party must himself be a member of the house, whereas this is not necessary for the head of a political party. Besides, parliamentary conventions stipulate that the head of the parliamentary party must enjoy the confidence of the majority of its members. However, it is pertinent to mention that in the political system that we have, the head of the parliamentary party is merely a nominee of the head of the political party and holds office during the pleasure of the latter.

Thus, we have a situation in which the majority of the members of the PML-Q in the Punjab Assembly have formed a Unification Bloc, elected their own parliamentary leader and sided with the PML-N. The pertinent question is: who is the legitimate parliamentary leader of the PML-Q in the house: the one elected by the majority which belongs to the breakaway Unification Bloc or the one having the support of the minority but backed by the political party? The question is important because the defection reference is to be initiated by the parliamentary leader and forwarded to the EC through the Speaker.

And the Speaker has to decide the status of the parliamentary leader.

The situation would have been less problematic had the defection clause under Article 63A come into effect, for in that event the party head would be competent to initiate the reference. It is very likely that the disagreement over the parliamentary head will be decided by the courts.

From the law of defection we move to the politics of defection. Floor-crossing, also referred to as horse-trading, has been a common practice in Pakistani politics. The presence of a multiparty system resulting normally into a hung parliament together with lack of healthy democratic conventions has been a breeding ground for change of loyalties. Coalitions come into being and fall apart — as in the case of the PPP-PML-N alliance — and those in the saddle are desperate to save themselves and thus indulge in horse-trading. On the other hand, smaller parties, factions or independents are equally desperate to have their pie of the cake. The result is a marriage of convenience.

Before the fourteenth amendment was passed, it was widely believed that the major cause of floor-crossing was absence of relevant constitutional provisions. However, subsequent events have dispelled this notion. Here are a few examples: (1) in 2002, the PML-Q lured some members of the PPP in the National Assembly to cobble together a coalition. The PPP members were given ministries as important as defence and interior. Surprisingly, the PPP never filed a reference against its defecting members. (2) In 2008, the entire parliamentary party of the PML-Q in the Balochistan Assembly, the single largest party in the house, sided with the PPP to enable the latter to form the government. The arrangement persists to date. It’s doubtful whether the PML-Q has filed a reference against any of its members who crossed the floor. (3) In 2009, the federal government clamped governor’s rule on the Punjab province and the PPP tried, but without success, to win the support of the members of the PML-Q Unification Bloc to form the government. (4) And now the PML-N has succeeded in winning the support of the majority of PML-Q members in the Punjab Assembly, without which its government would collapse.

The foregoing brings out two hard facts: One, when it comes to encouraging floor-crossing all major parties are alike. No party can legitimately claim that it is more conscientious or believes in cleaner politics than the rest. Two, constitutional provisions, though essential, are not sufficient to check defection.

Our political history bears out that whenever political parties have the intention to indulge in floor-crossing, they find a way.

By analogy, we have anti-corruption laws, but they have not discouraged political or bureaucratic corruption. By the same token, we have Article 6 of the constitution describing subversion of the basic law as an act of high treason but it has not prevented the generals from assuming the reins of the government.

It follows that irrespective of whether the siding of the PML-Q Unification Bloc with the PML-N constitutes defection under the relevant provisions of the constitution, floor crossing cannot be stopped unless all political parties of note commit themselves not to indulge in the practice under any circumstances. But would they?

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