By A.G. Noorani
How can the law punish defectors without penalising dissent?
THE ideal of democracy is firmly rooted in the psyche and aspirations of the people of South Asia. But its practice falls far short of what the founding fathers of the states of South Asia envisaged.
Alone in the entire democratic world India, Pakistan and Sri Lanka stand out as countries whose constitutions are disfigured by laws to combat the vice of defection by their legislators. They are called lotas in Pakistan and aya rams, gaya rams in India. Mass defections first erupted in India in 1967 when the Congress party lost its control over the states in North India.
In all the three states there are active think tanks, lawyers and political scientists of distinction. But never have they put their heads together to discuss the problem and compare one another’s laws. The law alone cannot eradicate the vice. But it can deter defections and check them. The three laws bear comparison. Each has its merits and drawbacks. The elected parliaments in Pakistan and India should review their laws.
The problem in the main is twofold. One is to define the offence of defection precisely enough effectively to punish defectors but without stifling dissenters within the political party. As it is dissent does not thrive if parties are run by Tammany Hall bosses unaffected by regular organisational polls. The other is to provide an impartial tribunal to decide disputes.
The first country to have such a law was Sri Lanka by the second amendment to its constitution in 1979. Defection was defined to mean cessation of membership of the party ‘by resignation, expulsion or otherwise.’ In the event of expulsion the member was provided with a constitutional remedy which is unavailable in India and Pakistan. Article 161 (ii) of Sri Lanka’s constitution gives him the right to move the supreme court ‘for a determination that such expulsion was invalid.’ This is an effective remedy both on the facts of the case and on the law.
In all cases of defection the speaker of parliament will appoint a select committee of five members ‘to inquire into and report to parliament on the circumstances’ in which he resigned or was expelled or ‘otherwise’ ceased to be a member. Eventually parliament will resolve that the member had indeed ceased to be an MP.
If the supreme court holds the expulsion to be invalid the matter ends there. The real problem is about an MP ‘otherwise’ ceasing to be a member of his party. The definition is vague and wide. It can cover dissent within and outside parliament and the issue will be decided by politicians, not judges. More likely than not the majority on the committee will be from the MP’s party; judges in their own cause.
In 1985 came the Indian law in the form of a new 10th schedule to the constitution. It made the speaker judge of disputes, thus further politicising an already politicised office in parliament and in the states. Splits within a party or mergers of two were excluded. Mergers had to be endorsed by at least two-thirds of the legislature party. Splits required at least one-third of the members. But there was a vital condition which was overlooked by the courts and the speakers. The split in the legislature party ‘must have arisen as a result of a split in his (legislator’s) original political party.’ This envisaged a split in the organisational wing first, a process which is open and lasts some days. The legislature party splits in consequence.
This was abused to engineer toppling by one-third the party in complicity with the opposition in midnight coups. Wholesale defection was allowed. Retail business was banned.
The definition covered defiance of the party whip or ‘if he has voluntarily given up his membership’ of the party. This goes beyond resignation to cover conduct which signifies detachment from the party. A political judge like the speaker can well use it to stifle dissent.
In 1992 the supreme court confined defiance of whips to motions of confidence and policies listed in the party manifesto. By a narrow majority (three to two) it upheld the speaker as judge. It held invalid a clause which barred the court’s jurisdiction thus permitting appeals to courts against the speaker’s decision. In 2003 the provision on splits was deleted not made precise. On both definition and adjudication the law is unsatisfactory. It has, however, deterred rampant defections.
On Oct 22, 1990, President Ghulam Ishaq Khan promulgated an ordinance on defections. It lapsed. Pakistan enacted an anti-defection law in 1997 in the 14th Amendment to the constitution which inserted Article 63A in the constitution. It covers violation of the party whip. The supreme court will, doubtless, restrict its scope to motions of confidence and manifesto pledges. Two other elements in the definition of defection cause disquiet. One is abstention from voting in the house ‘against party policy in relation to any bill,’ even if no whip is issued. The other is far worse. It is vague and sweeping. It covers ‘a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies.’
The only remedy open to the member is a hearing before the disciplinary committee of the party ‘on a reference by the head of the party.’ Against its decision he can appeal only to the head of the party; an appeal from Caesar to Caesar. His decision ‘shall be final.’ In the two other cases, violation of whip or policy, it is again the party head who will hear the member’s explanation and determine whether or not he has defected. The court’s jurisdiction is barred.
As I.A. Rehman pointed out in his column recently the Legal Framework Order of August 2002 (validated by the 17th Amendment) rewrote Article 63A by narrowing the definition. It confines defiance of the whip to the election of the prime minister or chief minister, a vote of confidence/no confidence or a money bill. The leader of the party will decide on defections. There is no reference to the disciplinary committee. However, once the chief election commissioner gives effect to the leader’s decision by declaring the seat vacant, the member will be entitled to appeal to the supreme court.
None of the three countries has adopted a satisfactory law. None has enacted the one provision which can effectively deter defections — bar the legislator who changes allegiance, as determined by a judicial forum, from any public office for a specified period. The honest convert will not be affected. The turncoat will be. He wants instant rewards. How can he trust a party boss who is so dishonest as to accept a dishonest turncoat like himself? I.A. Rehman put it neatly — ‘dissent is never welcome and defection is never unwelcome.’
But what prevents the many think tanks in India, Pakistan and Sri Lanka from joining in an exercise to draw up a model bill for adoption by their respective countries?
The writer is an author and a lawyer.