n October 3, a five-member bench of the Supreme Court, led by Chief Justice Qazi Faez Isa, unanimously accepted a review petition against a 2022 verdict of the court related to the defection clause in Article 63-A of the constitution. In 2022, a five-member bench of the court, headed by the then chief justice, had declared that votes cast contrary to the parliamentary party lines in the four instances outlined in the article should not count.

The review bench included Justices Mandokhail, Miankhel, Naeem Akhtar Afghan, and Aminuddin Khan. The review petition had been filed by the Supreme Court Bar Association in June 2022.

Pronouncing the verdict, Justice Isa announced that the appeal had been decided unanimously. He said a detailed verdict would be issued later.

The new ruling has shifted the focus to potential parliamentary defections. The verdict restores the practice of counting dissident votes, reversing the ruling that had nullified the votes of lawmakers defying a party directive on key issues like no-confidence motions and the election of the prime minister.

This decision has far-reaching implications for party discipline, political stability and democratic representation. By reinstating the validity of dissident votes, the court has weakened the control that party chiefs enjoy over other members. Lawmakers can now vote according to their personal or constituency concerns and make it count even if goes against the party line. For this, they can be de-seated should the party chief move a reference against them. However, their vote will stand. While this change empowers individual lawmakers, it introduces a measure of uncertainty, particularly for coalition governments that often rely on slim negotiated majorities.

The SCBA had argued for this outcome, maintaining that while dissident lawmakers could be de-seated, their votes should count as per the constitution. The new ruling affirms this position, emphasising that the constitution does not explicitly nullify votes cast by defecting members, thus protecting the integrity of parliamentary voting as a fundamental democratic process. The court’s decision represents a recalibration of the balance between party loyalty and individual representation, prioritising the autonomy of lawmakers.

However, this restored autonomy could increase political volatility. Opposition parties may now have more opportunities to exploit dissent within a ruling coalition, potentially leading to more frequent no-confidence motions. The ruling also reintroduces the possibility of transactional politics, where individual lawmakers wield greater influence and can negotiate concessions from party heads in exchange for their vote.

The objection to the composition of the five-member bench that delivered the verdict did not deter the final ruling. Concerns had been raised over the participation of an ad hoc judge and the absence of Justice Munib Akhtar, who had authored the earlier verdict. This has set a new precedent, significantly reshaping how constitutional norms in the political sphere may be interpreted. The ruling will likely provoke further debate on the balance between judicial intervention in political processes and the role of parliament in regulating its affairs.

The 2022 decision had sought to strengthen party discipline by invalidating the votes of defecting lawmakers. With this reversal, the political system now faces a more dynamic and potentially less stable environment. Party cohesion maybe more difficult to enforce as individual lawmakers get more sway in key parliamentary decisions.

The SCBA had argued for this outcome, maintaining that while dissident lawmakers could be de-seated, their votes must count. The new ruling affirms this reading, emphasising that the constitution does not explicitly nullify votes cast by defecting members.

This reversal restores the right of dissenting lawmakers to have their votes counted. It will likely be argued that this will substantially weaken party discipline at key moments. Lawmakers may be emboldened to defy party instructions in critical parliamentary votes with the confidence that their votes will have definite impact. This can loosen party leaders’ control over their members, potentially leading to more frequent dissent. This might foster more open debate within political parties, but it could also lead to instability, particularly in coalition governments where even a few defections could alter the balance of power.

Enhancing the dissident lawmakers’ role could also make parliamentary outcomes more fluid and unpredictable. The frequency of no-confidence motions or challenges to prime ministers could increase, as opposition parties seek to exploit divisions within ruling coalitions. This could lead to more frequent changes in government and coalition governments might struggle to maintain their majorities. The political landscape, already fragmented, could become more volatile. Forward blocs and smaller parties could gain leverage by threatening to break away. This could incentivise a more transactional form of politics, where parties and coalitions constantly renegotiate to secure loyalty and prevent defections.

This successful review will also have significant implications for constitutional interpretation and the role of the judiciary. The SCBA’s argument that the 2022 decision constituted judicial overreach appears to have gained further legitimacy since the court has chosen to reverse its ruling. The decision reflects a more restrained judicial philosophy, one that has greater regard for the separation of powers and leaves political matters to be settled within the parliament. By restoring the counting of dissenting votes, the judiciary may have signalled a return to the text of Article 63-A, which does not explicitly mandate the nullification of votes cast by defecting members, focusing instead on the disqualification of lawmakers post-defection. This outcome could be seen as a reassertion of parliamentary sovereignty and a rollback of judicial interference in political processes.

The principle of representative democracy has thus received a boost. The lawmakers might feel more empowered to vote according to their conscience or the interests of their constituencies, rather than being bound by the party line. Thus, restoring the balance between party discipline and individual autonomy, ensuring that elected representatives retain their role as the voice of their voters and are not reduced to being agents of the party leadership. The downside of the shift is the potential weakening of party unity and the risk of legislative gridlocks in situations where dissenting factions within a party hold disproportionate sway over parliamentary decisions.

Had the court upheld the original ruling, there would have been a solidification of the centralisation of power within political parties, stabilising government majorities at the cost of individual lawmakers’ autonomy and representative democracy. The reversal may lead to greater political diversity and individual expression within parties. It could also trigger political instability and weaken the coherence of always fragile coalition governments. The outcome will have long-lasting effects on Pakistan’s democratic framework, shaping not only the future of parliamentary governance but also the relationship between the judiciary and the political process.

The writer is an advocate of High Court, a founding partner at Lex Mercatoria and a visiting teacher at Bahria University’s Law Department. She can be reached at minahil.ali12@yahoo.com