Presidential reference: ‘The game of musical chairs’ must come to an end: CJP

ISLAMABAD: The Supreme Court wanted an end to ‘musical chairs’ since the 1970s and a stable government for the progress of the country.

Chief Justice Umar Ata Bandial, heading a five-judge bench, said; “For the progress of the country, a stable government is needed,” the chief justice said, adding that “the [game of] musical chairs that has been taking place since the 1970s must end.”

The bench on Wednesday heard the Presidential Reference for interpretation of Article 63A of the Constitution, the Supreme Court Bar Association, and the Pakistan Tehreek-e-Insaf Chairman, Imran Khan’s petitions filed under Article 184(3) of the Constitution.

The chief justice said the objections could have been raised on the no-confidence motion if the debate had taken place on it, but after the leave granted on the no-confidence motion on 28th March the National Assembly session was held on March 31, but the parliamentarians of the Pakistan Muslim League-Nawaz, Pakistan Peoples’ Party and JUI on that day only wanted voting on the no-confidence motion, and not a discussion.

He said that the Parliament is in the process of evolution and moving. “We are gatekeepers and custodians of the Constitution. We have to protect the Constitution.”

The chief justice said twice there has been a change in the law of defection i.e. in 1997 and 2010. He said the Supreme Court intervenes only when there is a deviation.

He asked Azhar Siddique, who represented the PML-Q that he was asking for lifelong disqualification, which is the major step. He said the Supreme Court has made disqualification under Article 62(1)(f) more tough. He said whether the apex court can read in the constitution, adding you are making case for amending the law and not for enforcing the law.

Siddique read a report to tell the apex court that the many parliamentarians in the past wanted change in Article 63A. He said Waseem Sajjad had suggested the changes in the Article. Upon that Justice Jamal Khan Mandokhel said but the majority of the Parliamentarians rejected his proposals and kept the punishment de-seating for defection.

Justice Ijazul Ahsan said one way of dealing with defection could be de-seating but wondered what another punishment to go with it could be. He said the party head issues declaration to the Speaker against a member, who violates the party direction. He, however, said the court has to see when the defection occurred then what are the consequences.

Justice Ijaz said even the Supreme Court called it (defection) a reprehensible act and cancer. If the said provision (63A) does not prescribe the term of punishment for defection and if the Court, it with other provisions of the Constitution then it will not read in of the constitution. He asked the PML-Q’s counsel that you want that the perpetrator goes scot-free.

Mansoor Usman Awan, appearing on behalf of the Supreme Court Bar Association (SCBA), argued that the defection is considered constitutional wrong and not offence and punishment provided in Article 63A is the de-seating. He said that it is wrong when the member defect for monetary benefit, but it is not wrong if done for other reasons.

Upon that Justice Ijaz questioned was there any incident when the defection is documented. Usman replied that in the PPP government, Mian Mehmood Kasuri has voted against Zulfiqar Ali Bhutto. Justice Muneeb said Senator Raza Rabbani has acknowledged that he faltered and gave vote against his conscience.

Justice Mandokhel said I know one incident in Baluchistan where an MPA was awarded a Senator seat in return for defecting from his parliamentary party in the Baluchistan Assembly. The SCBA’s counsel argued that the continuity of democracy and the system requires the election process.

Justice Muneeb Akhtar inquired from Usman could Article 63A be read together with Article 17(2), which pertains to freedom of association, but also talks about the fundamental rights of the political parties. He said that the assertions were made that the vote of a defected member should not be counted, adding if his vote is not counted then why a member would vote.

Justice Muneeb stated that the discipline of political parties was necessary for the parliamentary system of government. Usman argued that the right of the political party is there, but the Constitution commands that the members cast their vote with their conscience. Justice Muneeb then remarked that if they accept his argument then where the political would stand?

The chief justice observed that Article 96 was included in 1973 Constitution as a compromise and the PPP wanted stability in the country after the breakup of East Pakistan. They want to cement the democratic system and galvanize the political parties.

He recalled that in 1985, Article 96 was omitted, and the elections in the same year were held on a non-partisan basis. He continued that the top court in Benazir Bhutto case ruled that elections should be held on a party basis and declared that political parties had rights. “Subsequently, Article 63-A was added to the Constitution.” He should the Court treat Article 63-A merely a ‘ceremonial or decoration’ or give effect to other provisions of the Constitution.

At the outset, Siddique argued that the purpose of Article 63-A was to restrain lawmakers from defection, adding that a constitutional amendment was also made to prevent the practice. He recalled that the PTI lawmakers violated the party policy on April 16 and voted in favour of Hamza Shehbaz for his election as Punjab chief minister [in the Punjab Assembly].

The chief justice remarked that the court could not comment on the disqualification reference [taken up] by the Election Commission of Pakistan. “The matter pertaining to defected lawmakers is pending with the ECP.” Justice Mazhar Alam Miankhel said the matter had to be analysed by the ECP, adding an appeal against the decision of the election commission would eventually land in the apex court.

Attorney General of Pakistan Ashtar Ausaf Ali, appearing before the bench said, that he was conscious of the debate on Presidential Reference. “If you (bench) want then I will address the Court.”

The chief justice asked him to make a submission on Monday (May 16).

Copyright Business Recorder, 2022