Qamar Bashir
The controversial bench of the Pakistan Supreme Court recently overturned an earlier ruling announced in May 2022, which had declared the defection of a political party member to another party or voting against the declared policy of their party as unlawful. However, the formation of the review bench was questioned from the outset on legal, constitutional, and ethical grounds, casting doubt on the integrity of the proceedings. Critics argued that the inclusion of certain judges, particularly those who had previously dissented in the original decision, raised concerns about impartiality and fairness. This led to objections that the review process lacked a solid legal or ethical foundation, contributing to the perception that the case’s proceedings were shaky and undermining confidence in the judiciary’s handling of the matter.
The controversy was sparked primarily due to the inclusion of judges Justices Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail—both of whom had expressed opposition to the 2022 decision and conveniently easing out Mr. Justice Munib Akhtar who was part of the majority judgment. This raised objections, particularly from PTI, whose lawyer, Ali Zafar, argued that the participation of these judges compromised the impartiality of the bench. Zafar and PTI questioned whether judges who had already voiced their dissent in the earlier decision could fairly review the ruling.
The rationale by the Supreme court’s judgment 2024 was that votes cast by defecting lawmakers must be counted, even if they go against the party’s directives. The new ruling shifted the focus from protecting party discipline to ensuring individual lawmakers’ democratic rights. The bench reasoned that failing to count defectors’ votes would infringe on their fundamental right to vote, a core aspect of democratic governance. The court questioned whether a judge could strip a parliamentarian of this basic right, emphasizing that political parties should be subordinate to their leaders, but not the judiciary. The ruling criticized the 2022 ruling for placing excessive power in the hands of party leaders and undermining the autonomy of individual lawmakers. It pointed out that defection is not necessarily a betrayal of voters but can sometimes reflect individual conscience or political strategy, as is allowed in other democracies like the UK and Canada. The court found that labeling horse trading as a “cancer” in the 2022 ruling was inappropriate, indicating that such language was politically charged and not legally grounded.
The 2024 ruling was diametrically opposite to the original ruling of May 2022 ruling headed by the supreme court Mr. Justice Umar Ata Bandial, CJ, Mr. Justice Ijaz ul Ahsan, Mr. Justice Mazhar Alam Khan Miankhel, Mr. Justice Munib Akhtar, Mr. Justice Jamal Khan Mandokhail. The ruling declared that any vote cast by a defecting member of a political party (in specific cases like elections of the prime minister, votes of confidence or no-confidence, budget votes, and constitutional amendments) would not be counted. The court also disqualified defecting members, forcing them to vacate their seats. This decision aimed to prevent defections, or “floor crossing,” which was characterized as a form of horse trading that destabilizes political parties and weakens parliamentary democracy. The ruling emphasized that such defections eroded party discipline, undermined democratic processes, and allowed undue influence over lawmakers. The 2022 judgment sought to protect the integrity of parliamentary democracy by penalizing defections harshly. Defection was seen as a betrayal of the voters’ mandate, which was granted based on party affiliation and policies.
The 2022 ruling aligns most closely with Bangladesh’s and India’s approaches to controlling defections but even exceeds their stringency by invalidating votes outright. These countries aim to maintain party discipline, yet they respect the principle that all votes cast by elected representatives should be counted before any punishment is imposed. However, in established democracies like the UK, US, and Australia, there is greater emphasis on individual autonomy, with no legal consequences for defectors.
The 2024 ruling allowed defectors’ votes to be counted, marking a significant shift towards protecting legislative autonomy, aligning it more closely with international practices in countries like the UK, USA, and Australia. In these democracies, the right of individual legislators to vote freely is respected without the immediate legal threat of disqualification. However, the ruling also aligns to some degree with India and Bangladesh, where votes are counted before lawmakers are disqualified, maintaining a balance between party discipline and individual rights.
In Pakistan, where the political landscape is marked by the influence of undemocratic forces, including coercion, threats, and manipulation of parliamentarians, interpreting Article 63-A to protect democracy is a nuanced issue. The environment in Pakistan, unlike established democracies such as the UK, US, or Australia, is more prone to “horse trading” (the buying and selling of votes) and manipulation by powerful establishments. In this context, both interpretations of Article 63-A—those of 2022 and 2024—offer different paths for safeguarding democracy, but their effectiveness depends on the specific challenges of the political system.
In a political environment like Pakistan’s, where lawmakers can be coerced or bribed to switch allegiances, this 2022 ruling aimed to prevent destabilization by ensuring that defectors’ votes did not count in critical decisions, such as votes of no confidence or prime ministerial elections. This strict approach reflected an attempt to shield democracy from manipulation by undemocratic forces. It sought to enforce party loyalty and avoid external actors’ influence on parliamentarians, which has historically undermined governments that do not fully reflect the people’s mandate.
However, this interpretation has drawbacks in terms of limiting individual legislators’ autonomy. It centralizes power within party leadership, giving party heads significant control over their members and potentially stifling internal dissent or independent decision-making. While it tries to prevent external coercion, it could reinforce internal party coercion, as lawmakers are forced to toe the party line under threat of disqualification.
The 2024 interpretation in the Pakistani context, where coercion and horse trading are rampant, risks enabling the very destabilization it seeks to avoid. If votes by defectors are counted without strict penalties, powerful external actors could exploit weak party structures to manipulate outcomes, especially in situations where the government does not reflect the genuine electoral mandate.
This interpretation might provide more legislative freedom, but in an environment where coercion is common, it could weaken democratic institutions by making them more susceptible to external manipulation. The decision leaves the control of defections to party leaders, which may not be sufficient to protect the system from widespread political engineering.
In a fragile democracy like Pakistan’s, where undemocratic forces often play a decisive role in political outcomes, the 2022 interpretation might provide a stronger bulwark against destabilization by enforcing party discipline and minimizing external interference. Although it limits individual lawmakers’ freedom, it better insulates the democratic process from coercive forces that undermine the people’s mandate. Conversely, the 2024 interpretation, while more aligned with democratic principles in theory, risks exacerbating instability in the Pakistani context by allowing more room for horse trading and external interference.
Thus, the 2022 interpretation—despite its limitations on individual autonomy—may better protect Pakistan’s democracy from manipulation in the current political climate, while the 2024 interpretation, although more democratic in principle, may expose the system to greater risk of coercion and undue influence.
The writer is Former Press Secretary to the President, Former Press Minister to the Embassy of Pakistan to France, Former MD, SRBC and CEO, ATV