Article 63 (A) of the constitution of Pakistan 1973 – commonly known as the “Defection Clause” – details instances of defection, punishments for defection, and the methodology of exercising them.
Nota Bene: Prior to the 1973 constitutional clause Section 8 of the political parties Act of 1962 was in force. It constituted the punishment of Defection as follows: 5 years for the office bearers whereas expiration of the unexpired portion of membership for the members of the legislator assembly it was until the
It reads:
Section-8, Certain disqualifications for being a member of the national or a Provincial Assembly,
(1) A person who has been an office-bearer of the Central or a Provincial Committee of a political party dissolved t: cider sub-section (2) of section 6 or who has been convicted under section 7 shall be disqualified from being elected as a member of the National Assembly or a Provincial Assembly for a period of five years from the date of such dissolution or conviction.
(2) If a person, having been elected to the National or a Provincial Assembly as a candidate or nominee of a political party, withdraws himself from it, he shall, from the date of such withdrawal, be disqualified from being a member of the Assembly for the unexpired period of his term as such member unless he has been re-elected at a by-election caused by his disqualification.
Ordinance 21 of 1974 Act: This amendment, dated 26/10/1974 omitted some portions of Section 8 of 1962. This revision provided concessions and cover to the elected members for safe “floor crossing”. It survived for 10 years due to less importance of the misdeeds at that time.
On 14/12/1985, Section 8-B was enacted by Act 12 amendment which restored the punishments to their previous status. It was “either for the unexpired portion of the assembly OR the Till Re-election”
It read as under….
“Disqualifications on the ground of defection etc. If a member of a House—
defects or withdraws himself from the political party he shall, from the date of such defection or withdrawal, be disqualified from being a member of the House for the unexpired period of his term as such member, unless he has been reelected at a by-election held after his disqualification.
Ordinance No X of 1990:
Through ordinance No. X of 1990, an explanation was added to aforenoted Section 8-B. The explanation is in fact the cardinal piece of Article 63(A) as it provided the consequences of casting a vote or abstaining from a vote in violation of the party direction. It says;
A member of House shall be deemed to defect a political party if he—-
Votes or abstains from voting in such House contrary to any directions of the parliamentary party to which he belongs.
OR
If there is no disciplinary committee of such Parliamentary Party, such voting or abstention has not been condoned by the Parliamentary Party within thirty days from the date of such voting or abstention.
Further amendment of article 63(A):
14th constitutional amendment as per Act 26 of 1997, received unequivocal full house support without a single opposition, and incorporated Article 63A (1997) into the constitution. It read as below;
63A Disqualification on the ground of defection, etc.—
If a member of a Parliamentary Party defects, he may by means of a notice in writing addressed to him by the Head of the Political Party or such other person as may be authorized in this behalf by the Head of the Political Party, be called upon to show cause, within not more than seven days of such a notice, as to why a Declaration under clause 2 should not be made against him. If a notice is issued under this clause, the Presiding Officer of the concerned House shall be informed accordingly.
Explanation: A member of a House shall be deemed to defect from a political party if he, having been elected as such, as a candidate or nominee of a political party: or under a symbol of a political party or having been elected otherwise than as a candidate or nominee of a political party, and having become a member of a political party after such election by means of a declaration in writing –
(a) commits a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies, or
(b) votes contrary to any direction issued by the Parliamentary Party to which he belongs, or
(c) abstain from voting in the House against party policy in relation to any bill.
18th constitutional Amendment of 63 (A), 1998:
The aforenoted insertion was again re-enacted through the 18th Constitutional Amendment and now finally it reads as below,
63A. Disqualification on grounds of defection, etc.
(1) If a member of a Parliamentary Party composed of a single political party in a House-
(a) resigns from membership of his political party or joins another Parliamentary Party; or
(b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relations to-
(i) election of the Prime Minister or the Chief Minister; or
(ii) a vote of confidence or a vote of no-confidence; or
(iii) a Money Bill or a Constitution (Amendment) Bill;
He may be declared in writing by the Party Head to have defected from the political party, and the Head of the Parliamentary Party may forward a copy of the declaration to the Presiding Officer, and shall similarly forward a copy thereof to the member concerned:
The main theme of the periodic legislation revision.
The intentions and the impact of the legislation made from time to time was to facilitate the party rule, and not deprive the members of freedom of speech. It was, in effect, more towards supporting the ONE PARTY ONE VOTE.
The Hon’ble Supreme Court in the Case Wukkula Mahaz Barai Tahafuze Dastoor (PLD 1998 SC 1263) clarified that the Article does not in way curb the freedom of speech and held it entwined to the constitution of Pakistan. Hence the real meaning of Article 63(A) is beyond freedom of speech, it means something else. The Hon’ble Supreme Court in aforenoted, clarified the situation happening in and out of the Assembly and ways to deal with the same. However, protected it and declared it to be according to the constitution of Pakistan.
Secondly, it is the party that gives identity to individuals. The individuals may come and go but the party stays . It is not the individual who is really put to test after the completion of the term. it is the party that ultimately faces the music.
A good example is Mr. Nabeel Gabol’s defection from PPP to MQM, whose ticket helped him get elected as MNA.
So, by and large it is the party that gives identity. What makes you join a political party is a manifesto. Hence it is the party that matters.
Article 63(A) was inserted with this backdrop and hence received full assent of the National Assembly. If this is a position then how come an individual goes against the party direction.
Take away:
This proves beyond a shadow of a doubt that the party’s will, not the individual member’s, will prevail. The learned bench stated unequivocally that anyone who disagrees with the party’s agenda must abandon it and obtain re-election. He does not have – as per the constitution – the authority to vote against the party’s policies.
The panacea is ONE PARTY ONE VOTE in a system where monetary lures, greed, pressure, and personal agendas govern the members instead of the common good.
