“It is all too easy to (figuratively) throw up one’s hands and balk at trying to find a solution for a problem”, said Justice Munib, but then “real life problems don’t just disappear simply because a solution is not conveniently at hand.”

It was such a context in which the original 63-A judgment was written. Whether it was sound in law; whether the majority should have written what it did, and broadly whether court was the right forum are questions that we will get to.

But first the point of little disagreement: defections were a grave problem— “a cancer afflicting the body politic”; and with the gravity of the problem came the (partial) insufficiency of the solution.

To begin, what did the court say? The discussion was layered and each landmark case on political party jurisprudence added a meaningful wrung. Article 17 encourages not only the formation but also the continued operation of political parties both pre and post election, and this operation involves both healthy and unhealthy operation—the former to be preserved and the latter curbed—and while the text of the article expressly deals with the latter, it follows as a necessity that the law would regulate the former also; it had to. This was the content of earlier judgments.

The majority picks up the thread. Cleansing defections is integral to ensuring party’s health, the health having both internal and external dimensions. The article 63-A deals with the internal health detoxing as it does, a party off its defector.

But what about the poisonous seed—the casted vote—which, if allowed to germinate will render the impacted party shield-less before the consequences and leave the external aspect of healthy operation bare and exposed as the “market” of defection will remain forever warm and equally the incentive for “buyers” and “sellers”. Surely the law would say something about this gluttony—it had to.

“Vote of the member in default is to be disregarded” concludes the judgment. The critique—theoretical and practical—did not fall short and while there is nothing gainsaid in acknowledging some merit, it is equally vital to explain why the merit goes little in shaking the judgment’s foundation especially in review.

The theory first: that the judgment is an exercise in waywardness riding roughshod on the Constitution’ spirit. The law has a spirit is not denied by anyone; where is it to be found and what is its proper place in analysis are questions that demand answers.

To say as one of the dissenters Justice Miankhel does that the spirit has to be deciphered “from the language” helps when there is a statement of law that must be read in a context—the spirit gives the context.

But is that it, especially when one is expounding the Constitution? It ought not to be. Saying that the spirit is reliant on the text—not in the form of collective reading, but as hard lettered words—to have force would be a disingenuous exercise—saying the chicken (text) and the egg (spirit) are the same—and the result: a spiritless spirit.

While the spirit of law—especially the constitution—should not stretch the text to its limits, the spirit can and ought to fill a void existent in law.

Such an interpretation is rare, sure, controversial, yes, but it is neither wrong nor novel. One only needs to look at the flowerful jurisprudence on fundamental rights in various jurisdictions to conclude that judges do fill the constitution’s two to three liners with words and meanings of their own and the attempt is not to emasculate the text but to bolster it— a figurative addition of helping hands.

On the other hand, we have had judgments that have stretched the law’s text to its limit—basic structure judgment saying amendments are challengeable when the text did not say so; 62(1) f judgment saying that the article is only a procedural guideline when the text empowered courts to give a declaration.

This is not to question the validity of those judgments but to state simply that we have had different forms of interpretation, we can agree with some, disagree with the others, but our proclivities don’t define the rightness/ wrongness of judgments. The importance of this will be explained at the end.

Now, to practice. Here, the shouting tends to get louder, and if I may put it so, vainer; exaggeration and oversimplifications run to the point where the judgment is not understood but caricatured to depravity.

First, that the judgment has summoned a funeral for voter’s conscience. The most obvious response is that the discounting of vote is only prescribed in countable instances—no confidence, constitutional amendment, and CM/PM election; in all other instances, although the judgment tries saying harsh words, it stops—those words remain musings or obiter in legal parlance; the conscience therefore in all other instances is free.

To return to the four named instances, the judgment does give a short shrift to an individual voter but if the conscience is forceful enough to amass a majority in the parliamentary party, the numbers can not only offer a full display of their own conscience but can bind others to do the same. Until then, they are to concur or take the more honourable route and resign.

This also upends the other critique, that the judgment creates an elective dictatorship— the same would be to disregard the dichotomy between party head and parliamentary party that the judgment draws based on the text. It is the party in parliament that gives the binding direction, deciding as it does by a majority, the head stands guard on the second step i.e. disqualifying the defector.

The tension between a political party’s right to stay intact, and a voter’s right to vote (with conscience or otherwise) is evident, pulling as they do, two threads of a rope. In resolving this tension, the judgment leans on the side of political parties and in doing so finds a place among the scores of political party judgments that have done the same. The logic: “a political party is more much more than merely the sum of its parts.”

The above paragraphs present a meritorious defence of the judgment. Th judgment itself, though, is brute and straightforward. In our country’s history how many conscience-led voters have we had who have sacrificed their seat on principle—not greed? “Not even one”.

Justice Mandokhail’s dissent agrees with the majority in principle. But rather than discounting a defector’s vote, he says that the defector should be proceeded against through “due process” in trial for 62(1)(f). One would appreciate the suggestion, but when the learned judge himself signed off on the majority in Hamza Rasheed judgment that neutered 62(1)(f), the prescription for discounting votes is bound to gain traction.

Finally, on a point that ties practice to theory: Sure, the spirit of the constitution says that defections must be shot down fully, and discounting votes is an ancillary exercise; the same could only be done by the Parliament.

The contention here remains with the term “only”. That the same could have been said in a simple legislation, Yes — on a different point, a statement to that effect in a statute would have been a transient statement capable of being taken down at whim; more importantly, what would it have signified for our constitution—that it speaks only half heartedly about a problem as grave as defections.

So a constitutional amendment? Again, that could have been one route and the fact that the statement of discounting votes was taken out of the constitution does not mean they can not be regulated (analogizing from Qazi Isa led bench on intra party elections being taken out of article 17).

But the fact of the matter is that neither the law nor the constitution’s text until then said a similar thing. So, one conclusion: a constitutional interpretation. And to the alternative that this was in effect legislation, the simple answer that the judges are empowered to say what the constitution ought to speak on a particular issue—weave in the spirit, weave in the bareness of the text—and even otherwise embrace the alternative that court should have stopped with the text as a disagreement—insufficient to declare the judgment, wrong.

So, the crucial fact: the judgment has been reversed in review. The grounds for review are fairly narrow i.e. there has to be an error floating on the surface of the record or to put it simply a blatant misreading of the law has to be shown; it is a not a stage of criticizing the merits or saying that a different view could have been possible, or even for the dissenters to suggest that their opinion was better.

The 63-A judgment reads the law (uniquely); it does not misread it, so, justifying its reversal in review will be a herculean task and maybe, one would have to look outside the law for support.

Ali Hassan
The writer is a law student at Lahore University of Management Sciences.