Presidential reference: Counsel for opposition leader says ‘timing was not appropriate’

ISLAMABAD: The Supreme Court was told that President Dr Arif Alvi filed a reference when the opposition parties submitted a no-confidence motion in the National Assembly against Prime Minister Imran Khan.

Makhdoom Ali Khan, representing the Opposition Leader in the National Assembly Shehbaz Sharif, said that the President of Pakistan sent the Reference to the apex court seeking interpretation of Article 63A of the Constitution when the resolution on no-confidence motion was submitted in the Parliament. He said that the president is forwarding the stance of the prime minister.

He argued that though the President is bound by the advice of the prime minister, but he had two options; first, he could have returned the Reference within 14 days. Second, he could have asked the PM to take the matter to the cabinet. But the president did not exercise these options and acted agility.

A five-member bench, headed by Chief Justice Umar Ata Bandial heard the Presidential Reference, filed under Article 186 of the Constitution and the President Supreme Court Bar Association (SCBA) petition under Article 184(3).

Makhdoom Khan contended that the timing of the Reference is not appropriate. He said the opposition filed the requisition for convening the Session on March 8, and the same day resolution for no-confidence motion was also submitted. He said in view of Article 95, the Speaker was bound to summon the session within 14 days, which was March 22. He added the Session was called on March 21 and after ‘fateha’ the Session prorogued, adding the first time the NA Session for no-confidence was held on March 25.

He said the courts remain uninfluenced of the events taking place outside, as it is part of judges’ training. He said questions asked by the government are not in vacuum as the impression is created that the court is leaning to one or the other side.

Justice Ijazul Ahsan said the courts are not concerned about the timing. The article and the laws are interpreted not for immediate situations, but for all times to come.

Justice Bandial asked the counsel you mean to say that the matter before the Court is political and the timing is such that the progress of the hearing can be used one or the other way. The court advice is sought when the society is not in “thick of it”.

The chief justice said there was wisdom that parliamentarians stop short of disqualifying a member on defection and agreed only to de-seat him. He said some of the matters need to be left to the political process.

Justice Jamal Khan Mandokhail questioned whether the President of Pakistan could seek advice from the Supreme Court under its advisory jurisdiction on political matters, related to the Parliament. He further asked whether the President sent the Reference on the advice of the National Assembly speaker.

Makhdoom Ali Khan argued whether the President could seek advice to substitute the text of Article 63A of the Constitution, which is very much clear. He said one of the questions of the Reference is that there should be a long time disqualification of the member for casting vote contrary to the direction of the party. It is further sought that the vote cast against the party discipline be disregarded.

He said instead of giving suggestions the questions have been asked in the Reference. He argued it is not necessary the apex court answers the questions, adding the Court would have to see whether this could be done by it or through constitutional amendment. He said by reply to the Question No 4 of Reference the Court will be re-writing the Constitution.

Question 4 of the Reference says; “What other measures and steps can be undertaken within the existing constitutional and legal framework to curb, deter and eradicate the cancerous practice of defection, floor crossing and vote buying?”

Makhdoom Khan argued that those who do not learn from mistakes, never progress. He said a year ago the government sent Reference on Senate Election, but nothing was done on political questions to curb the menace of horse-trading. He said the premier was aware of the horse-trading but nothing has been done since last year.

The counsel argued that Article 63A does not deal with morality or nobility, adding the Constitution makers choose not to go beyond to de-seat a member on defection. He said the present situation could have been avoided if the steps were taken to curb the menace of horse trading.

Justice Bandial said it is not the first time horse trading has taken place, it has happened earlier, as well. He said the defection has been accepted by parties and the act committed by the members to defect has been condoned. It might affect the smooth functioning of parliamentary democracy. He said that they cannot add to the intent of the lawmakers. He said when the system is not strong enough to act itself then why should the court enforce this upon it.

Justice Muneeb said that on the Questions in the Reference of Senate election the issue was that the MNAs/ MPAs were selling their votes, adding that they were not acting as the member of the party, but were voters in the National Assembly or Provincial Assemblies. He said while Article 63A deals with that the member of a party should not defect. He further said that Article 63A is an attempt to deter a person pre-voting, he shouldn’t vote against the discipline of its own party.The case was adjourned until Monday.

Copyright Business Recorder, 2022