March 25th, 2022
Write-up By Rehan Piracha
Reporting by Munizae Jahangir
The Supreme Court on Friday held up the possibility of sending back a presidential reference regarding the interpretation of Article 63A relating to disqualification of parliamentarians.
A five-member bench, headed by Chief Justice of Pakistan Umar Ata Bandial, was hearing the reference along with the Supreme Court Bar Association’s petition to prevent a clash ahead of a no-trust against the prime minister in Islamabad. Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar, and Justice Jamal Khan Mandokhail are the other members of the bench.
On the onset of the hearing, Attorney General Khalid Javed Khan told the court that in his arguments he would try to connect Article 62 (f) relating to qualifications of parliamentarians with that of Article 63A relating to their disqualification on grounds of defection. He said his case for lifetime disqualification of parliamentarians on defection rested on proving the above linkage.
Justice Ijazul Ahsan observed that Article 63A should be read along with other provisions given in the Constitution. The Attorney General said the Constitution was an organic whole.
Earlier in the hearing, Chief Justice Bandial observed that the Holy Quran mandated severe punishment for dishonesty, adding that a person who breaks trust is called a traitor.
The CJP questioned whether a parliamentarian was bound to follow the party by law and inquired from the Attorney General about when should an MNA be declared a defector. The Attorney General replied that the Constitution did not specify anywhere that MNAs were required to be loyal to their parties.
The CJP said Article 62(1)(f) talks about qualification and not a disqualification. Justice Munib Akhtar asked whether Article 62(1)(f) would be applied upon violation of Article 63-A, noting that Article 63-A talked about vacating seats.
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 observed that the president had asked for the 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.
Justice Bandial said that the length of disqualification in Article 63-A can be included through the legislation. The AG 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.
Minto questions moral discourse in reference in his letter to CJP
In a letter to Chief Justice Umar Ata Bandial, Abid Hassan Minto, senior lawyer and president of Awami Workers Party, said the reference seeks to build a “moral’ discourse on the basis that members who vote in contravention of their party’s direction renege and cheat on the mandate of the people who elect them. However, he questioned whether the Constitution itself validated defection in relation to independent members later joining a political party in the National Assembly under Article 63A (2).
“By permitting an independent member to join a political party after being elected, the Constitution itself is accepting and validating a kind of defection,” Minto said.
‘President has violated the neutrality of his office by sending reference’
Minto also raised questions on the neutrality of the President of Pakistan who according to the Constitution could send a reference to the Supreme Court under the advisory jurisdiction of the Supreme Court.
“It is clear from the words “if the President considers it desirable” and “question of law which he considers of public importance” that making a reference to the Supreme Court is something the President does on his own, in his discretion, and not on the advice of the PM/Cabinet,” Minto said.
He said channels had quoted Prime Minister Imran Khan as saying that the purpose of the reference was to stop buying and selling of votes. “It, therefore, appears that the President has filed the Reference on advice and in aid of the political government,” Minto wrote in his letter to the CJP.
The apex court adjourned the hearing of the reference till Monday, March 28.