March 24th, 2022
Chief Justice of Pakistan Umar Ata Bandial on Thursday observed that it would be contemptuous not to count a vote cast in a no-confidence motion against the prime minister, adding that the real question before the court was how long a member of National Assembly could be disqualified for defection.
A five-member bench, headed by the chief justice, was hearing a presidential reference on interpretation of Article 63 A and the Supreme Court Bar Association’s petition for averting a violent clash during a no-trust move in the lower house. The CJP observed that if a Member of the National Assembly (MNA) wanted to vote on a no-confidence motion, the member in question could not be stopped from voiting in the no-trust proceedings.
The CJP remarked that Article 63A of the Constitution outlined procedure for action against a parliamentarian voting contrary to party policy and any proceedings would take place only when the vote was casted.
The CJP said Article 63A has a system for disqualification of a defecting member and the question before the court was ‘what would be the period of disqualification of such a member?’. According to Article 63A, members should stand by the party even if they were angry, the CJP observed.
The CJP said that such issues should be resolved in the parliament instead of being subject of a court reference and the court would like the political parties to stand in defence of the Constitution as all parties should adhere to democratic values.
The bench comprises Chief Justice Bandial, Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail.
The Chief Justice questioned the Attorney General why the government has brought a reference when the Constitution clearly states about the consequences of floor crossing. “Do you want the disqualification to last a lifetime?” the CJP inquired from the Attorney General.
“This is what the government desires so that democracy is strengthened in the country and the opinion of the Supreme Court in this regard will be important,” the Attorney General told the court.
Justice Jamal Mandokhel observed whether the government wanted to make the party chief a king by banning floor crossings. In reply, the Attorney General told the court the government also did not wish to make members turncoats If it did not want to make the party chief a king.
Prior to the hearing, opposition parties in Pakistan, including the Pakistan Muslaim League-Nawaz, the Pakistan People’s Party, and the Jamiat Ulema-e-Islam, submitted their responses to the Supreme Court’s presidential reference.
In its written reply, the PML-N termed the reference a waste of court’s valuable time saying it was premature and unnecessary. The PML-N said the apex court had the powers to interpret the Constitution while the court did not have the powers to amend it.
The PML-N contended that there was no ambiguity in Articles 63A and 95 of the Constitution. Under Article 95, every member has the right to vote and the votes cast by each member of an assembly would be counted, the PML-N said in its response. The PML-N reply was submitted by its counsel Makhdoom Ali Khan.
In its response, the PPP stated that a member would face action under Article 63A only after a member had cast his vote.
The PPP said the presidential reference on Article 63A did not fall under the advisory purview of Article 186 as it could affect the right of appeal of a member.
In its written reply, the JUI-F took the stance the Speaker could not be given the powers to reject the votes of the members. According to the party’s stance, it was not necessary for the apex court to give its opinion on the reference before voting was held in the forthcoming no-trust proceedings requisitioned by the opposition parties. If the Supreme Court gave its opinion before the no-trust motion’s voting, the forum of the Election Commission would become ineffective.
According to the JUI-F, Article 63A was already undemocratic and a lifetime disqualification for defecting members would further weaken a weak democracy.
The Supreme Court Bar Association, in its written reply to the Supreme Court on the reference, stated that no member of the Assembly can be disqualified for voting contrary to party instructions under Article 63A. No member of the National Assembly could be barred from voting under Article 63A, the SCBA said.
Under Article 95 of the Constitution, voting in Parliament, is an individual right of a member of the National Assembly and no member of the Assembly could be prevented from voting, the SCBA said, adding that each member of the National Assembly was free to exercise his or her right to vote.
According to the SCBA’s stance, voting was not the right of any political party under Article 95 where vote cast is counted and the people run the system of government through their elected representatives.
The bench adjourned hearing of the reference till Friday (March 25).