Answering any question referred by President means putting something new in the Constitution: Justice Mazhar Alam

ISLAMABAD    -   Two judges of the Supreme Court’s five-member bench which rendered an opinion on Presidential Reference for the interpretation of Article 63A of Constitution have stated that not counting the vote of a legislator, cast contrary to party head’s di­rection, makes no sense.

Both the minority judges Thurs­day released judgment of their short order. They are of the opin­ion that Article 63A of the Consti­tution is a complete code in itself, which provides a comprehensive procedure regarding defection of a member of the Parliament and consequences thereof.

It was May 17, 2022 when the Supreme Court with majority of 3 to 2 held that the vote of any member of a Parliamentary Par­ty in a House that is cast con­trary to any direction in terms of para (b) of clause (1) of Arti­cle 63A cannot be counted and must be disregarded.

Chief Justice of Pakistan Jus­tice Umar Ata Bandial, Jus­tice Ijaz ul Ahsan and Justice Muneeb Akhtar had opinion that vote cast contrary to par­ty head direction must be dis­regarded, while Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail had dis­sented with the majority.

Justice Mazhar Alam Khan, who is going to be superannuated on 13.07.2022, in his detail opin­ion wrote: “I am utterly unable to understand how the vote (be­ing cast contrary to the direction of the Parliamentary Party in a House), on the basis of which he would be proceeded against for defection, would not be counted in the absence of an express pro­vision of the Constitution.”

“The interpretation as offered by majority would render the provisions of the Article 95 & 136 (vote of no-confidence against Prime Minister & Chief Minister) as redundant as no resolution for no-confidence would ever suc­ceed.” “The argument that there is a vacuum which necessitates interference of this Court is un­tenable as the provisions of Arti­cle 63A are simple, clear and un­ambiguous,” he further wrote.

Justice Jamal Khan stated that to exclude from counting any vote so cast, makes no sense, as there is no restriction in the Constitu­tion upon counting of the votes so cast. The only consequence upon casting or abstaining from casting vote of a member is prescribed in Article 63A of the Constitution.

“The vote in the Parliament is not the fundamental right of the party, rather it is a funda­mental right of a member, to be exercised in the interest of the people. The defector is since ready and willing to pay the price for defection, therefore, the right of the political party stands protected to award its symbol to any person to con­test by-election,” he wrote.

Justice Mazhar Alam stated that all the questions referred to this Court (by the President of Pakistan), with the cumula­tive effect, are of the type that answer to any question in af­firmative would lead this Court to exceed and overstep its do­main. “This in other words would mean that this Court is putting something new in the text of the Article which is not even the mandate of the Con­stitution. It is for the Consti­tution makers to remove this cancerous tumour through a surgical operation.

Justice Jamal Khan wrote that the judges while interpreting any provisions of the Constitution should limit themselves to a fair reading of the words of the Con­stitution and the intention of its framer, and no more. Otherwise, Judges enter the realm of creating, not just interpreting the Constitu­tion. The wordings of Article 63A are clear enough and free from any doubt to judge the intent of the Constitution’s framers. Thus it needs no further interpretation.