Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial will lead a five-member larger bench of the Supreme Court to hear the presidential reference on March 24 seeking opinion on Article 63-A of the Constitution.
Article 63-A deals with the disqualification of parliamentarians over defection. Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail are the other members of the bench. The same bench will also hear a petition filed by the Supreme Court Bar Association (SCBA), which has sought the apex court’s intervention to prevent “anarchy” by directing all state functionaries to act in accordance with the Constitution and law ahead of voting on a no-trust motion against Prime Minister Imran Khan. According to the supplementary cause list, the hearing for the presidential reference and the SCBA’s petition would be held at 1pm on March 24, says a news report.
Notices for the hearing have been issued to the PTI lawyer Ali Zafar, PPP’s lawyer Farooq H Naek, PML-N’s lawyer Makhdoom Ali Khan and Jamiat Ulema-i-Islam-Fazl’s lawyer Kamran Murtaza, as well as the advocate general for Sindh, Islamabad inspector general of police, interior secretary and president of the SCBA, among others. The development comes a day after a two-member bench of the top court, comprising CJP Bandial and Justice Akhtar, took up the presidential reference and the SCBA’s plea.
While the court had declared on Monday that a larger bench would hear the presidential reference, the names of the judges constituting the bench were not finalised at the time. Attorney General for Pakistan (AGP) Khalid Jawed Khan had submitted the reference seeking the SC’s opinion on Article 63-A of the Constitution yesterday.
The reference presents two interpretations of Article 63-A and requests the court to advise which of them should be followed. According to the first interpretation, “khiyanat (dishonesty) by way of defections warrants no pre-emptive action save de-seating the member as per the prescribed procedure with no further restriction or curbs from seeking election afresh.” While the second interpretation “visualises this provision as prophylactic, enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralising the effects of vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct.”
The development came days after several PTI lawmakers, who had been ‘in hiding’ at the Sindh House in Islamabad, revealed themselves – proving that the opposition’s claims of having “won over” members of the ruling coalition were indeed true. Prime Minister Imran Khan and some cabinet ministers had earlier accused the opposition of indulging in horse-trading ahead of the crucial vote on the no-confidence resolution, disclosing that the capital’s Sindh House had become a centre for buying and purchasing members.
But while government members continued to claim that these dissidents had “sold their souls for money”, a number of TV channels that sent their teams into Sindh House to verify the claims were faced with nearly a dozen PTI members, who claimed that they had developed differences with the Imran Khan-led government and were going to vote in “accordance with their conscience”.
Subsequently, the government had decided to file a presidential reference for the interpretation of Article 63-A with Information Minister Fawad Chaudhry saying the top court would be asked about the “legal status of the vote of party members when they are clearly involved in horse-trading and change their loyalties in exchange for money”.
The presidential reference was filed under Article 186 which is related to the advisory jurisdiction of the SC.
In the reference, President Dr Arif Alvi also asked the apex court whether a member who “engages in constitutionally prohibited and morally reprehensible act of defection” could claim the right to have his vote counted and given equal weightage or if there was a constitutional restriction to exclude such “tainted” votes. He also asked the court to elaborate whether a parliamentarian, who had been declared to have committed defection, would be disqualified for life.
“What other measures and steps can be undertaken within the existing constitutional and legal framework to curb, deter and eradicate the cancerous practice of defection, floor crossing and vote-buying?” the reference further asks.
“As happened on many occasions in past, the stage is yet again set for switching of political loyalties for all sorts of illegal and mala fide considerations including vote-buying which by its very nature rarely leave admissible or traceable evidence,” the reference states. It adds that some of the “presently defecting [MNAs] have even publicly admitted to defection in interviews to the media with evident pride and further commitment to stay engaged in this immoral trade”. It cautions that unless horse-trading is eliminated, “a truly democratic polity shall forever remain an unfilled distant dream and ambition”.
