ISLAMABAD: The Supreme Court has been urged to interpret Article 63A of the Constitution as unending malaise of floor-crossing and defections have sullied and damaged the purity of the democratic process in the country for decades. President of Pakistan Dr Arif Alvi on Monday filed a Reference under Article 186 of the Constitution through Attorney General for Pakistan to obtain the opinion of the Supreme Court on questions of law of public importance.

The Court has been prayed to answer the questions of law so as to purify and strengthen the democratic process worthy of people’s respect and trust and forever eradicate the menace of defections.

Four questions of law have been framed in the Reference:

1. Whether keeping in view the scheme and spirit of the Constitution which enshrines democratic values, customs and norms and provides for parliamentary form of government conducted through the chosen representatives of the people being carriers of Amanat, which of the following two interpretations of Article 63A of the Constitution is to be adopted and implemented to achieve the constitutional objective of curbing the menace of defections and purification of electoral process and democratic accountability namely:

Interpretation of Article 63A in a manner that Khiyanat by way of defections warrant no preemptive action save de-seating the member as per the prescribed procedure with no further restriction or curbs from seeking election afresh; or

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A robust, purpose-oriented and meaningful interpretation of Article 63A which visualizes this provision as prophylactic enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralizing the effects of vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct;

1. Where a Member engages in constitutionally prohibited and morally reprehensible act of defection, can the member nevertheless claim a vested right to have his vote counted and given equal weightage or there exist or is be read into the Constitution restriction to exclude such tainted votes from the vote count?

2. Where a member who could but did not hear the voice of his conscience by resigning from his existing seat in the Assembly and has been finally declared to have committed defection after exhausting the procedure prescribed in Article 63A of the Constitution including appeal to the Supreme Court under Article 63A (5), he can no longer be treated to be sagacious, righteous, non-profligate, honest and Ameen and, therefore, stands disqualified for life?

3. What other measures and steps can be undertaken within the existing constitutional and legal framework to curb, deter and eradicate the cancerous practice of defection, floor crossing and vote buying?

The Reference mentioned that while choosing their representatives for the National and Provincial Assemblies, the voters evaluate different candidates on the basis of political ideology and manifesto of the party to which the candidates belong. They primarily vote for the political parties, which eventually form government at the national and/ or provincial level. The credentials of the individual candidate, though important, are rarely the determining factor in this exercise save in those exceptional cases where independent candidates outvote all other candidates including those contesting on party platforms. That still remains a rarity as overwhelmingly it is the party vote bank which propels the majority of the candidates to the Assemblies.

It said that in the scheme of the Constitution the elected members of the Assemblies are not absolutely free agents of their will as such. Having been elected on party ticket, they are bound by party discipline and remain accountable as per the party manifesto.

It maintained that each member of the Assembly is ultimately bound by his conscience and when he is compelled to vote or act contrary to his conscience by his party, he must hear the voice of conscience and resign from the membership of the party and the Assembly and seek the mandate of the electorate afresh independently or of any other party ticket. This is the most sublime act an elected member can undertake in the given circumstances.

Owing to the weak interpretation of Article 63A entailing no prolonged disqualification, such members first enrich themselves and then come back to remain available to the highest bidder in the next round perpetuating this cancer.

The Reference states if the constitutional disapproval and prohibition against defection is effectively enforced with deterrence for future as well, many such members shall stand disqualified for life under Article 62(1) (f) and will never be able to pollute democratic streams.

It is submitted that mere de-seating from present membership of the Assembly or denying them access to the Assemblies for any shorter duration especially close to the end of the terms of the Assembly would not really deter such members reared in the culture of shifting loyalties for self-enrichment.

“Indeed for true and meaningful eradication of horse trading, nothing short of life disqualification would have desirable effect,” it added.

Copyright Business Recorder, 2022