GIVEN Pakistan’s own version of the Ides of March in the form of the no-confidence motion tabled by the opposition, much ink has been spilled over the implications of potential interpretations of Article 63-A — the constitutional provision which covers disqualification of parliamentarians on the ground of defection.

To simplify, there is essentially one question before the Supreme Court: to what extent does party discipline (ie voting along party lines) prevail over a politician’s individual right to vote in line with their own conscience? Whatever the outcome of the current quandary, the status quo presents a unique opportunity for us to look over our borders and open our minds to the experiences of nations similarly placed.

India has rigid anti-defection provisions which allow for the disqualification of legislators if they defy directions issued by their party leadership on any issue. The law itself (introduced in 1985 through a constitutional amendment) was aimed at curtailing the impact of corruption, bribery and the ‘evil’ of political defections — the same arguments being made by the PTI government today before the court and in the media. However, these provisions which were meant to strengthen the integrity of India’s democracy have, in fact, ossified the parliamentary process, leading to the fundamental democratic tools of debate, discussion and opposition being rendered meaningless in light of the ‘numbers game’ in the Indian parliament.

Our perspective should be informed by defection laws elsewhere.

Similarly, the Bangladesh constitution also places a bar on any parliamentarian voting against their party, and even goes to the extent of explaining that any abstentions from voting (in cases where the party had issued directions for no abstentions) would be seen as a vote against the party.

Unlike the Indian and Bangladeshi constitutions, which prohibit voting against party lines entirely, Article 63-A of our Constitution has evolved from similar blanket bans on voting against party lines to a narrower and comparatively more reasonable set of circumstances — including voting against party lines during a vote of no-confidence. Additionally, the consequences for any such defection are limited to that of an MNA ceasing to become a member of the House and their seat falling vacant.

The debate then turns to whether defection in this particular instance of a motion for a vote of no-confidence should be seen as ‘morally reprehensible’ and hence deserving of lifelong disqualification. The vote of no-confidence against a sitting prime minister is arguably the most important with regard to the national interest of the country, as well as the current government’s stability. And that is precisely where an individual legislator’s role to serve as a legislative check on the executive comes into play. The constitutional separation of powers demands that the branches of government act to keep each other in check.

This is certainly easier in jurisdictions with arguably weaker party discipline and no constitutional or legal repercussions for voting against party lines, witnessed in examples such as the US Republican representatives who voted to impeach president Donald Trump in 2021, or the British Conservative MPs who voted against Prime Minister Boris Johnson’s Brexit plan in 2019. Upon a perusal of the anti-defection laws around the world, it is no surprise to observe that nascent democracies tend to gravitate towards such anti-defection laws, examples being Zimbabwe, Sierra Leone and Guyana, along with India and Bangladesh.

Keeping all of this in view, a legislator’s decision to vote against their own party head at the risk of being disqualified must be seen as an individual act stemming from the legislator’s own conscience and beliefs. It must not be coloured with an assumption of illegality, ‘horse-trading’, and corruption, unless the same can be effectively proven. The PTI government’s efforts are aimed towards either pre-emptively having these allegedly defecting MNAs disqualified merely on the basis of their intentions, or, alternatively, having their votes discounted after they have been cast and after the voting legislators have been declared defectors and subsequently disqualified.

And while the concerns raised by the government regarding the involvement of bribery and corruption in ‘buying’ votes are valid, they must not be conflated with a constitutional scheme which aims to strike a balance between allowing a member of parliament to vote against their party line, if they feel strongly enough to do so, and accept their disqualification which comes as a direct consequence of casting their vote.

While politicians across both sides of the aisle seem eager for the Supreme Court to rule in favour of their respective political agendas, it would be prudent to hold our horses (traded or otherwise) before we inadvertently establish a potentially damaging and undemocratic precedent.

The writers are lawyers.

Published in Dawn, March 27th, 2022