March 30th, 2022
By Rehan Piracha
Chief Justice of Pakistan Umar Ata Bandial on Wednesday observed the Supreme Court has to come in to protect the Constitution if the system was weak.
A five-member bench, headed by Chief Justice Umar Ata Bandial, was hearing a presidential reference on the interpretation of Article 63A of the Constitution relating to the disqualification of a parliamentarian over defection. The bench also comprises Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar, and Justice Jamal Khan Mandokhail.
Chief Justice Bandial said horse-trading was not happening for the first time and questioned whether any action was taken in past instances. The Chief Justice said members who had defected were taken back by their parties.
The party might pardon those who vote against the party line, the Chief Justice observed, adding that the court was there to implement the Constitution. He said any article of the Constitution had to be effective. Chief Justice Bandial said the Supreme Court has to come to the protection of the Constitution If the system was weak.
On the onset of the hearing, the Islamabad police submitted a report on the storming of the Sindh House in the federal capital. Islamabad Advocate General Niazullah Niazi told the court that non-bailable arrest warrants had been issued for members of the National Assembly from the ruling Pakistan Tehrik Insaf involved in the attack. He said both the members would be arrested as the National Assembly was in session.
The Islamabad AG said an activist named Tauseef Khan was arrested again while some of the accused belonged to Khyber Pakhtunkhwa and Sindh. The Sindh Advocate General told the court that the names of those who instigated the attack were not included in the first information report.
However, Chief Justice Bandial told the Sindh AG that he could approach the legal forum of the high court in this regard. The Chief Justice observed that It was not possible for the court to let off incidents like the Sindh House storming. The court called for a progress report on the Sindh House incident on the next hearing on Monday (April 4).
Makhdom Ali Khan, counsel for Pakistan Muslim League-Nawaz, resumed his arguments relating to the presidential reference. Justice Jamal Khan Mandokhail questioned whether the President could take an opinion on the proceedings of the National Assembly and whether the Assembly was bound by judicial opinion. Justice Mandokhail inquired if the President had sent the reference on the advice of the National Assembly Speaker, adding that the custodian of the National Assembly proceedings was the Speaker. The PML-N counsel replied that only the Attorney General could answer the above queries by the court.
The PML-N counsel said the President had asked the court about how the horse-trading could be stopped, contending that the answer to the question of stopping horse-trading was not an opinion but it would be tantamount to the framing of the Constitution. He said the President did not seek an opinion on any mechanism to stop horse-trading and the reference referred to buying and selling of votes in the Senate election.
Chief Justice Bandial said Article 63A clearly stated that defection from the party was unconstitutional. Addressing the PML-N counsel, the Chief Justice said the counsel’s conversation gave the impression that defecting from a party was not a bad thing to do. Upon this, the PML-N counsel said he might not be able to properly convey his points to the court in this regard.
Justice Ijazul Ahsan observed that there were two points of view relating to defection. “One point of view is that defection from the party is a part of democracy,” Justice Ijazul Ahsan observed, adding that the second point of view was that defection was a deliberate deception. “Article 63A deems defection from a party as wrong,” the judge observed.
Justice Ahsan questioned whether defection from the party was wrong enough to merit lifetime disqualification of a member. According to the President, there was evidence of wrongdoing in the Senate election but both the President and the Prime Minister did not take any action against it, the PML-N counsel argued.
Justice Ahsan said there was talk of money in the Senate election but one had to prove such allegations, adding that Article 63A did not require any proof. The Chief Justice said Article 63A did not apply to Senate elections.
Giving his arguments that the reference was not admissible, the PML-N counsel said the court was not legally bound to hear the matter as the question in the reference was political and not legal. He said the court should send back the reference as it was not appropriate to approach the court for every question.
The PML-N counsel said sometimes it was more appropriate to appeal to the public than to the court, adding that attempts were made to sway the court emotionally by using words like trust and betrayal.
Justice Munib Akhtar said a member casts his or her vote as a voter In the Senate election, adding that voting for money was a crime even there. Justice Mandokhail said a party chief had to send a declaration of defection according to Article 63A, adding that nowhere has it been said that a person would be disqualified without being heard. Makhdoom Ali Khan said he agreed with Justice Ahsan’s observation that no positive or negative connotation of defection has been given in any dictionary.
Justice Mandokhail said proceedings under Article 63A would begin with a vote, inquired about how the President knew that members of the ruling party were defecting. The PML-N counsel told the court that the PTI counsels could answer the court query in this regard.
Justice Miankhel asked about the kind of instructions that a party leader gave under Article 63A, adding that he had a copy of a party leader’s directive. The judge handed over a copy of PTI chief Imran Khan’s directive to party members to the PML-N counsel.
Justice Ahsan took exception to the PML-N counsel’s assertion that the court should look into the timing and circumstances leading to the presidential reference which came after a no-confidence motion was submitted against the prime minister.
Justice Ahsan said the PML-N counsel should understand that the court did not interpret the Constitution on the basis of circumstances, adding that the effects of judicial interpretation were also for the future. Justice Akhtar questioned whether the President could not seek opinion on the question of law after a year of the senate election.
Chief Justice Bandial inquired from the PML-N counsel whether he thought the hearing of the reference might have an effect on the political issue in the country, adding whether the council wanted the court not to exercise its advisory jurisdiction. Justice Ahsan said the council wanted to look into the political situation before answering a constitutional question.
Referring to Ayesha Gulalai’s case, the PML-N counsel said the apex court had ruled on every issue relating to defection under Article 63A. Justice Akhtar said the party’s directive could not be proved in Gulalali’s case, adding the defection matter was over if a member cast his vote in spite of the party’s directive not to do so.
Justice Mandokhail said if the matter of defection ended with voting contrary to party line then why a show cause was needed to be given to the member. The judge said that even if the court declared defection to be a heinous crime, it was up to the Prime Minister to decide whether or not to send a declaration in this respect.
Justice Mandokhail said if dissenting members were disqualified for a lifetime nobody would defect for a good cause. The hearing on the presidential reference was adjourned till April 4 (Monday), a day after the voting on the no-trust proceedings against the prime minister.