WHEN parliament passed the 21st Amendment in 2015 giving constitutional cover to military courts, Senator Raza Rabbani claimed he was ‘ashamed’ for having voted against his own conscience. In voting on the 23rd Amendment earlier last month, a number of other politicians expressed similar sentiments. This makes one wonder if things would have turned out any differently if we never had the 14th Amendment in the first place.

To put matters in perspective, the amendment inserts Article 63-A into the Consti­tution which prevents legislators from voting contrary to the instructions of their party. This means that legislators must vote in accordance with party instructions even if those instructions conflict with their individual moral and political convictions. Failure to do so can result in disqualification and subsequent removal from parliament. Perhaps this explains why many politicians ended up voting for an institutional change (military courts) they had individually despised.

Absent an empirical study, however, one can only speculate if the 23rd Amendment would have passed without Article 63-A. Either way, it should not foreclose the possibility of using this occasion to consider the continuing utility of the 14th Amendment.

Proponents of the 14th Amendment have advanced two arguments in its favour. First, it penalises horse-trading by removing those who engage in that activity from parliament. Second, and as a corollary, it prohibits defections by parliamentarians thereby lending greater stability to the democratic regime.

Article 63-A isn’t needed to address horse-trading.

While the ability to enforce party discipline is crucial for the stability of any parliamentary system, it doesn’t provide adequate justification for why this should be done through the Constitution. After all, enforcing party discipline using constitutional means raises many problems.

First, it prevents legislators from voting based on their conscience. Even abstaining from a vote where it is against party instructions can lead to a legislator’s disqualification. This is problematic from a purely jurisprudential standpoint: each vote in par­­lia­­ment is sacred and cabining the legislator’s freedom to vote through imposition of a constitutional duty makes a mockery of the sanctity attached to these votes. Horse-trading can always be addressed by sub-constitutional means. Article 63-A isn’t necessary for that.

Second, in a country where dynastic politics is a dominant feature, the 14th Amend­ment gives excessive powers to party heads and further concentrates powers in the hands of a few political families. Considering the absence of any democratic culture within these parties, parliamentarians should not be constitutionally bound by the decision of its party leadership when those decisions have, in fact, been reached in an undemocratic fashion. Enforcing party discipline is important but doing so through a constitutional provision is a serious cause of concern.

When political parties start controlling their parliamentarians through the Constitution, it encourages complacency on the part of the party itself as it is no longer threatened by defection. The party knows its legislative proposals will be supported by its parliamentarians irrespective of how outrageous the underlying policy might be. This means party heads have no incentives to engage in greater intra-party consultation to improve the content and substance of the proposals. In a good democratic polity, legislators should be voting in line with party policy not because they are under a constitutional duty to do so but because the policy makes substantive sense on the merits.

Third, the 14th Amendment makes rent-seeking easier, thus contributing to the increasing influence of powerful interest groups in policymaking. Normally, an interest group would have to lobby several hundred members of parliament to get its preferred policy passed, meaning the costs incurred in such rent-seeking are discouragingly high as more resources are needed to build the requisite coalition in parliament. The 14th Amendment distorts this system by reducing the cost incurred in rent-seeking activities. Theoretically, interest groups now need to lobby only one individual: the party head; the 14th Amendment takes care of the rest.

Ideally, parliament should reflect the will of the people and undertake programmes in the larger public interest. This means that costs of interest group politics should be prohibitive so as to (1) discourage wasteful rent-seeking; and/or (2) force the formation of broader parliamentary consensus. Article 63-A undermines both objectives. While it may reduce the number of legislators extracting rents on the supply side, the 14th Amendment nevertheless lowers the cost of interest group politics thereby increasing demand for rent-seeking.

There is, thus, reason to believe that we will be better off repealing the 14th Amend­ment because the original policy objectives underlying it can always be achieved through some other sub-constitutional means. But then who cares about the law in Pakistan?

The writer is a lawyer.

Published in Dawn, April 9th, 2017