March 21st, 2022
By Rehan Piracha
The Supreme Court will hear a presidential reference about its opinion on whether parliamentarians can be slapped with lifetime disqualification over defection under the Constitution on March 24.
On Monday, Chief Justice of Pakistan Umar Ata Bandial said a five-member larger bench will be constituted for hearing the reference. He said this while hearing a petition filed by the Supreme Court Bar Association (SCBA) seeking the court’s intervention to prevent a showdown between the government and opposition parties ahead of the no-trust vote. The court has not yet announced names of judges of the larger bench that will hear the reference.
The federation has invoked the apex court’s advisory jurisdiction to seek opinion about four questions of laws relating to Article 63 A of the Constitution relating to disqualification of parliamentarians over defection. Chief Justice Umar Ata Bandial and fellow member on bench Justice Munib Akhtar took up the reference submitted by Attorney General. The reference was submitted by Attorney General of Pakistan (AGP) Khalid Jawed Khan earlier in court.
The court said a political party that wanted to become a respondent in the reference could file an application and adjourned the hearing till March 24.
The presidential reference was filed after several disgruntled Pakistan Tehreek-e-Insaf (PTI) lawmakers disclosed to the media that they were staying at the Sindh House in Islamabad over security concerns and threats from their party.
The first question of law seeks the opinion of the apex court about which of the two interpretations of Article 63-A were to be implemented to ‘achieve the constitutional objective of curbing the menace of defections and purification of the electoral process and democratic accountability.
According to the reference, the first interpretation about “khiyanat’(dishonesty) by way of defections warrants no preemptive action save de-seating the member as per the prescribed procedure with no further restriction or curbs from seeking election afresh”.
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 second question of law relates to whether the ‘tainted vote’ of a defecting parliamentarian can be excluded from the vote count. “Where a Member engages in constitutionally prohibited and morally reprehensible act of defection, can the member nevertheless claim a vested rightto have his vote counted and given equal weightage or there exist or is be read into the Constitution restriction to exclude such tainted votes from the votecount?” reads the text of the second question of law in the reference.
The third question seeks the apex court’s opinion about whether a parliamentarian who has exhausted his appeal against disqualification under Article 63-A stands disqualified for life over not meeting the desired standards of qualification of membership.
“Where a member who could but did not hear the voice of his conscience by resigning from his existing seat in the Assembly and has been finally declared tohave committed defection after exhausting the procedure prescribed in Article 63-A of the Constitution including appeal to the Supreme Court under Article63A (5), he can no longer be treated to be sagacious, righteous, non-profligate, honest and ameen and, therefore, stands disqualified for life?”
Lastly, the federation seeks the opinion of the Supreme Court about additional measures which could be taken to curb defections, floor crossing and vote buying within the existing constitutional and legal framework.
According to the reference, the “questions of law of public importance revolving around interpretation of Article 63A of the Constitution have arisen in the context of the unending malaise of floor crossing and defections that have sullied and damaged the purity of the democratic process in the country for decades”.
SEVEN DAYS TO RETURN
Referring to the disgruntled PTI lawmakers, the reference states that some of the presently defecting members have even publicly admitted to defection in interviews to the media with evident pride and further commitment to stay engaged in this immoral trade as the prima facie consequence is innocuous while gains in cash and kind may be colossal without any possibility of loss of membership of Parliament for life”.
“That unless this menace is timely and forcefully rooted out, a truly democratic polity shall forever remain an unfilled distant dream and ambition,” reads the reference.
“Therefore, the most suitable and appropriate disqualification for a declared defector is disqualification for life as provided under Article 62(1)(f). Such members must never be allowed to return to Parliament nor their tainted votes be counted in any constitutional or democratic exercise” reads the reference.
Speaking to reporters outside the Supreme Court, Federal Information Minister Fawad Chaudhry said that the PTI had given seven days to its dissident members of the National Assembly for returning to the party’s fold. The dissident lawmakers would face disqualification for lifetime, if they did not return to the PTI, he said.
Chaudhry also said that the government had sought the apex court’s advice on the status of those party members who were explicitly involved in horse-trading in the reference. “Does the Constitution of the country allow the members of the Parliament to sell their loyalty and encourage “Lotacracy” in the country,” he questioned.