SC stresses sanctity of constitution as tensions mount

ISLAMABAD: The Supreme Court said disregarding the vote of a parliamentarian in a no-confidence proceeding against the prime minister is an insult.

A five-judge larger bench, headed by Chief Justice Umar Ata Bandial, on Thursday, heard the Presidential Reference, filed under Article 186 of the Constitution and the Supreme Court Bar Association (SCBA) President petition under Article 184(3). The President has sought the apex court’s interpretation of Article 63A of the Constitution.

The bench issued notices to the provincial governments on the presidential reference, ordering that the provincial governments also submit written replies, which would facilitate the hearing. The PTI, the PML-N, the JUI-F, and the SCBA also submitted their written replies.

Chief Justice Umar Ata Bandial said no member could be stopped from casting a vote, adding there is nothing in the Constitution not to count the vote of the member. He said not counting the member’s vote is an insult.

At the end of the proceeding, when Attorney General for Pakistan Khalid Jawed Khan requested that a decision on the Reference be rendered before the voting, the chief justice said; “Don’t link the Supreme Court’s proceedings on the Reference with the Parliament’s proceedings on no-confidence motion.” The Reference will not be decided within one or two days, he added.

PM Imran urges nation to join him at PTI's March 27 rally against 'evil'

During the course of hearing, Justice Bandial said; “We can’t ignore the process given in the Articles 63A,” adding the procedure is provided in Article 63A for removing a member on defection. He asked the attorney general that the questions raised under the SC’s advisory jurisdiction are not to be decided by the Supreme Court, but by the parliament itself. We are not here to fill in the blanks.

He said the real question was how long a dissident MNA could be disqualified for. When his disqualification be counted and when will it end?

Justice Mazhar said the language of the Article 63A is very clear, adding a member removed due to defection can contest the next election. He said qualification of a parliamentarian is given in Article 62, and disqualification in Article 63, adding the member could not be disqualified for life on the basis of defection.

The AGP then asked: Is the court permitting defection?

Justice Mandokhel questioned whether an MNA’s vote could be counted in the proceedings conducted before his de-seating, observing that there was no mention of not counting a vote in the 18th Amendment. The AGP replied that members elected to the assembly were bound by party discipline. Justice Mandokhel stated that all the members of the Parliament whether they belong to ruling or opposition party have the right to cast vote, adding defection under Article 63A will not be triggered unless he casts the vote.

Justice Bandial said votes are counted even if someone casts a vote against the party, adding when a member openly announces that he violated the party discipline then he will be de-seated. When that member challenges the decision before the Supreme Court, it would be seen whether to grant stay or not.

Earlier, when the attorney general read out the Benazir Bhutto case judgment, wherein, certain observations were given against horse-trading and floor crossing, the chief justice said that the judgment was an issue and Article 63A was inserted through the 18th amendment in 2010.

Justice Ijaz asked the AGP why the ECP’s jurisdiction is limited only to the explanation of the party head given in the declaration. He said declaration of party head is examined by the ECP and it decides in favour of the member or the party, then the aggrieved party would move against the decision in the apex court. He referred to the case of Gulalai.

Justice Muneeb Akhtar observed that the purpose of Article 63-A was to stop defection from party policies. “The party’s collective opinion is above an individual’s opinion,” he said. “The collective opinion is important for the stability of democracy.”

He said one interpretation of Article 63-A was that the vote of dissidents should not be counted.

Justice Muneeb further said the Constitution empowered the parliamentary party, and not the party’s leader.

He said if the institution (political party) is destroyed then there is no point of having the party mentioned in the constitutional and the parliamentary system. He said the original Article 96 of the Constitution was removed by General Ziaul Haq, it disregarded the will of the collective party and individual opinion was given priority.

Justice Ijaz said that Article 63A is the improvement to the process of Article 95, adding Article 63A should be read with Article 95. The attorney general said from day one, the defection remained the main concern. He said that in order to remove the cancer, the lawmaker who defects should be defanged.

Justice Mazhar Alam Khan Miankhel said by asking the member to vote for the party he is compelled to vote in the Parliament against his conscience. He has not contested an election to resign, adding the party head may issue a ticket to him (the member) but he cannot be compelled to cast a vote in his favour. If this happens then there will be no free will of members in the party.

Justice Jamal Khan Mandokhel recalled what had happened in the Balochistan Assembly. He said no-confidence resolution was moved against their own party’s government. One member said that his is the party, while other member claimed he is the party.

The attorney general argued that the member is elected because of the party ticket and the symbol. Justice Mandokhel said a person wins an election not because of the party votes, but he also has his own voters.

Justice Mandokhel observed that all the decisions in the Parliament are taken with majority. He questioned whether in a developing country there is permission for floor crossing? The attorney general said it is permitted to reduce the prices of commodities.

Upon that, Justice Mandokhel questioned whether he wanted to make “party leader a king”.

The AGP promptly replied, no, adding but does not want a lawmaker to become a “lota” (turncoat). He said the freedom of the elected member is connected with the will of the voters of the constituency.

Justice Mandokhel said that the institution (political party) must be strengthened.

He questioned whether there is debate in the party, and how much freedom is allowed to the members. He asked what the procedure of running a party is.

Justice Bandial said Article 63A is part of the evolution of the parliamentary party in the country. The court observed that even if one is happy or unhappy, you (member) have to be with the party. Discuss the differences within the party.

He noted that Article 96 in the original Constitution has provided the remedy, which is not in the Article 63A of the Constitution. He said in Article 63A, the procedure is given. The voter who casts a vote against the party must be heard.

The case was adjourned until today (Friday).

Copyright Business Recorder, 2022