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The debate over counting dissenting votes

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If there’s one place where reality exists not as a line, but as a circle, it’s here. As the ruling party recoils towards its old haunt at D-Chowk, there are once again talks of both military extensions and possible calls from military extensions. And the question of whether or not a prime minister remains in office may, once again, be decided by the judiciary.

Whatever plans the government may have to interfere with the vote of no-confidence, they are likely to be challenged before the court. But now, as it turns out, the government has pre-emptively sought the Supreme Court’s opinion on the relationship between a vote of no-confidence and disqualification for defection. As two sides now wait on the Supreme Court, at the heart of it all will likely be the battle against redundancy.

The legislature passes laws and then leaves them for judges to interpret. So, as a safeguard against overly inspired interpretations, courts self-regulate through certain ‘rules of interpretation’. One of these is that if your chosen interpretation results in absurdity then you have to interpret it differently.

The two provisions of the constitution that provide the battleground are Articles 63A and 95. Article 63A provides for “disqualification on grounds of defection”, which includes a member’s voting contrary to the directions of their party in a vote of no-confidence against the prime minister (we’ll call this a ‘dissenting vote’, for now). And that vote of no-confidence is provided for in Article 95, under which a prime minister ceases to hold office if a majority of the National Assembly votes as such.

Those who oppose counting dissenting votes argue that allowing such votes would leave Article 63A hollow: if potentially purchased votes are counted, then what good is 63A? On the other side of the trench, what use is a vote of no-confidence if a significant portion of the National Assembly can’t even fill in their comments cards?

But this is anything but a paradox. One results in absurdity and the other in an outcome that is, at best, undesirable. Consider a government that comes to power under a super-majority: unless the party decides to go kamikaze, a vote of no-confidence would basically never be an option. That is to say that for the PML-N’s term beginning in 1997, when it swept about two-thirds of the seats in the National Assembly, Article 95 would have basically been dormant — an obvious absurdity.

Or consider if it had won further forty or so seats. Now, with over 80% of the seats in the National Assembly, the PML-N would have found itself insulated from even having someone table the resolution for a vote of no-confidence, let alone having people vote on it. Again, an absurdity.

But on the other hand, allowing dissenting votes protect the constitution. Preventing horse-trading and floor crossing is, indeed, important. But to argue that Article 63A can only do its job if dissenting votes are discarded is disingenuous. Prevention comes from consequences. 

Few would argue that being disqualified from the National Assembly is not such a consequence. You may argue that it doesn’t go far enough, but there’s no absurdity here. And the way to take it further is to have the legislature change the law, not to coax unelected judges into reading in terms that don’t exist.

While on reading in items that don’t exist, one provision that once did exist was Article 96(5).

Back when the vote of no-confidence was first introduced to the constitution of 1973, it was Article 96. And towards the end of Article 96 was a little clause declaring that if a voter from a political party cast a vote “in support of a resolution for a vote of no-confidence” while “the majority of the members of that political party in the National Assembly has cast its votes against the passing of such resolution”, then those votes in support would be “disregarded”. That clause was later removed from the constitution in 1985.

Clearly, parliament was not unaware of the option to disregard votes, but the legislature chose to delete it. Another principle of interpretation that courts use is that things that are ‘conspicuously absent’ from a law are not to be grafted into it by judges. The fact that this consequence no longer exists is, thus, a rather conspicuous absence.

Through the years, the legislature has wrestled with how to handle defection. It has expanded and contracted what ‘defection’ means for the purposes of disqualification, and it has tinkered with the consequences. 

At times, the Political Parties Act disqualified members of parliament only when they withdrew from a party, while votes contrary to the majority of the party’s membership were discarded. At others, votes were neither discarded nor were there personal consequences. And in present times, the equilibrium is clear: you can be disqualified for casting a dissenting vote, but there is no provision for discarding such a vote.

This is all to say nothing of the obvious chain of causation: the vote must be cast before you are disqualified. If you haven’t cast the vote, there is nothing to disqualify you for. You can be disqualified for voting, “in relation to” a vote of no-confidence, but the disqualification is for the act of voting, not for acts “in relation” to the vote. This means, of course, that you cannot be disqualified for standing in line to vote, or even announcing that you will vote against the prime minister. The text is clear, and only the legislature can alter it.

And because even disqualification by the party head is the first subject to confirmation by the Election Commission, and then the Supreme Court, all of this disqualification business is close to impossible during a vote of no-confidence. 

So neither a prime minister, nor a party head, nor the secretary of the National Assembly, nor a speaker can do anything to prevent the casting of the vote. The vote will be cast, and in due course, the member who cast it ought to be disqualified. That’s all there is to it.

And yet, suggestions abound to the effect that the speaker will, somehow, disrupt the casting of such votes. Ordinarily, this would be a rather uncharitable presumption. 

This is particularly so given the presumption of the neutrality of the speaker (which, in some countries, is why speakers wear robes). But when the speaker tweets his loyalty to the prime minister, against whom the vote is to be passed, it doesn’t hurt to double-check.

The roles of the speaker and the secretary of the National Assembly are both laid out in the National Assembly’s own rules. Nowhere is the speaker allowed to discard a vote. 

In fact, the speaker only receives the final count and not even the list of voters; it is the secretary who collects the lists and passes on the final count to the speaker. And the secretary, who does not even figure into the whole procedure for disqualification under 63A, obviously can’t disregard votes on this basis, either.

So, the options that the speaker is left with are the rather blatant suspension or withdrawal of members, which are only allowed for “disregarding the authority of the speaker” or “grossly disorderly” conduct. Such violations must, of course, also be connected to some violation of procedure or law.

Indeed, against all of these insinuations, there seems to be no law to come by. If the constitution is to be followed, then parliament shall decide whether the prime minister shall stay or not — as is its right — for better or worse.

But then again, rain may yet not fall on the charade. Reality is, after all, a circle. And we’ve seen it all happen before.

The writer is a lawyer. Email: salaar.khan@columbia.edu. Tweets at @brainmasalaar

Originally published in The News

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