Supreme Court judge Justice Ijazul Ahsan Friday observed that the lawmakers contesting on a party’s electoral symbol were bound by the party discipline. He made these remarks during the hearing of presidential reference seeking the Supreme Court’s opinion on Article 63-A of the Constitution. A five-member bench, comprising Chief Justice Umar Ata Bandial, Justice Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, heard the petition.
Earlier in the hearing, Justice Mandokhail asked if any member of the National Assembly could express no-confidence against the prime minister. At this, Attorney General for Pakistan (AGP) Khalid Jawed Khan said a party ticket was a certificate that bore the electoral symbol. He said MNAs elected on reserved seats for women and minorities did not receive votes from the people, and instead they were nominated by their parties. Some of the MNAs elected on reserved seats were also present at the Sindh House, he said, referring to the dissident PTI lawmakers, says a news report.
There is a difference in the oath of the prime minister and an MNA, he pointed out. He said in the subcontinent, political parties such as the Congress and Pakistan Muslim League were formed in the names of great leaders and they still continue to exist.
In a parliamentary democracy, the AGP said, parliamentary sessions are held, but MNAs are not supposed to be “rubber stamps”. If they don’t agree with the party’s decision, they may resign, he suggested, adding that differences with the party didn’t mean going against the government.
Justice Mandokhail remarked that the Constitution gave everyone the right to free expression of their views. “Should [an MNA] be disqualified for expressing their views?” he asked.
Chief Justice Bandial, however, observed that the Holy Quran mandated severe punishment for dishonesty. “A person who breaks trust is called a traitor,” he remarked. “But does a member declare to be bound by the party?” he questioned, and then asked the AGP when should an MNA be declared a defector. He added that the Constitution did not specify anywhere that MNAs were required to be loyal to their parties.
“Article 62(1)(F) talks about qualification, not disqualification,” Justice Bandial said.
He said the court could not fill the blanks and asked the government why it did not make a law in order to determine the length of disqualification of lawmakers for violating Article 63-A.
Justice Mandokhail remarked that the Constitution gave everyone the right to free expression of their views. “Should [an MNA] be disqualified for expressing their views?” he asked.
Justice Munib Akhtar, too, asked whether Article 62(1)(F) would be applied upon violation of Article 63-A, noting that Article 63-A talked about vacating a seat.
Justice Mandokhail inquired if an MNA had ever resigned after casting their vote. AGP Khan replied that it had happened in India and the Supreme Court had declared the member a defector.
“Nobody can be encouraged to deviate from the party,” he added.
Justice Mandokhel said the president could have called a meeting of political parties with representation in Parliament and discussed the issue with them before filing a presidential reference.
Justice Ahsan remarked that the president had asked for interpretation of the Constitution and the court could not drift away from that.
“It is possible that the reference may be sent back,” he added.
Meanwhile, Justice Bandial said the length of disqualification in Article 63-A could be included through a legislation.
“If the vote is not counted, there’s no point in boarding another ship,” Justice Munib pointed out.
Justice Mandokhail, on the other hand, asked if a member had the right to expression under Article 63-A. He, however, observed, that if an MNA went against the party, he had to face consequences.
AGP Khan contended that under Article 63-A, no one had been disqualified so far, and that it was not necessary to prove that money had been accepted for voting against the party line.
During the proceedings, advocate general for Islamabad said the Jamiat Ulema-e-Islam (JUI-F) wanted to block the Kashmir Highway to which Kamran Murtaza, JUI-F’s counsel, said that they were ready to cooperate with the police.
“We don’t understand why the administration [of Islamabad] is scared,” Murtaza said.
To this, the CJP said democratic values should be followed and instructed the Islamabad attorney general to cooperate with the party.
The court, subsequently, adjourned the hearing till Monday after the AGP promised to complete his arguments before 2pm on March 28.
On Monday (March 21), a two-member bench of the apex court comprising CJP Bandial and Justice Akhtar took up the presidential reference and declared that a larger bench would hear the case.
AGP Khalid Jawed Khan had submitted the reference seeking the SC’s opinion on Article 63-A of the Constitution on March 21.
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.
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 of the Constitution, which is related to the advisory jurisdiction of the SC.
In the reference, President Dr Arif Alvi 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.
It cautions that unless horse-trading is eliminated, “a truly democratic polity shall forever remain an unfilled distant dream and ambition”.
“Owing to the weak interpretation of Article 63-A entailing no prolonged disqualification, such members first enrich themselves and then come back to remain available to the highest bidder in the next round perpetuating this cancer.”
