March 29th, 2022

By Rehan Piracha 


The Supreme Court on Tuesday questioned whether a member of assembly could be slapped with lifetime disqualification on the basis of defection alone.

The court remarks came during the hearing of the presidential reference on the interpretation of Article 63A relating to a parliamentarian’s disqualification. A five-member bench comprising Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Mazhar Alam Miankhel and Justice Jamal Mandokhail is hearing the reference along with the Supreme Court Bar Association’s petition regarding proceedings of a no-trust motion against the prime minister.

At the onset of the hearing, the Chief Justice said that the bench would not pose questions to the Attorney General so that he could conclude his arguments in the reference.

During the hearing, the Attorney General told the court that he had talked to the Prime Minister about the apex court’s observation about his statement regarding the judiciary made during an address to a public gathering in Kamalia. The AG said he wanted to read out a statement on behalf of the prime minister to the court. He said the Prime Minister has great respect for the Supreme Court and its judges. The reference to the judiciary was made in context with the ouster of former chief justice Sajjad Ali Shah in 1997, the AG quoted the PM as saying. The Attorney General said the PM believed in the impartiality of the judges and freedom of the court.

In his arguments, the AG said the Constitution did not give tenure to an assembly member. If an assembly is dissolved its members lose their right of membership. A member of the assembly would cease to be a member and his seat declared vacant on defection under Article 63A. The provision means a new election is to be held on the seat of the defecting member, the AG said.

On the Attorney General’s arguments, Justice Munib Akhtar questioned the basis of a member’s disqualification period upon being defeated. Parliament could set the duration of the disqualification period for two or five years, Justice Munib Akhtar observed. He questioned whether a member of assembly could be slapped with lifetime disqualification on the basis of defection alone.

Similarly, Justice Ijazul Ahsan questioned why the Parliament had not set period of disqualification by amending Article 62A.

Justice Jamal Mandokhel questioned whether laws in the rest of the world had any disquailification relating to dissent. Upon which, the Attorney General said that there was no lifetime disqualification in any law in the world.

Justice Munib Akhtar said that the Parliament could legislate on the duration of the disqualification in 63A. Justice Ijazul Ahsan said whether a member should be disqualified for life for dissenting with the party. He observed whether the government wanted the apex court to deal with a difficult matter that the political parties had chosen not to do themselves.

On this occasion, Chief Justice Umar Ata Bandial observed whether the court would be going into the realm of the constitution-makers if it assumed that that act of defection was dishonorable and it was satisfied the requirement of lifetime disqualification were met. “We are not legislators,” the Chief Justice observed, adding that the judges could only interpret the law. The judges could not rewrite the Constitution and whether that could interpret the intention of the makers of the Constitution, the Chief Justice questioned.

After the Attorney General concluded his arguments, Makhdoom Ali Khan, counsel for Pakistan Muslim League-Nawaz argued that the defection clause was added to the Constitution in 1973. However, the clause was water-downed in the 1980s. He said the political parties had since then amended the defection clause several times but did not set any lifetime disqualification.

The court adjourned the hearing till March 30 (Wednesday) and will hear arguments of the political parties in relation to the defection clause.


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