A five-member larger bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial heard the case.
CJP Bandial said that Attorney General Ashtar Ausaf himself opted to assist the court on Monday, when Additional Attorney General Amir Rehman informed the court that the AG has been late due to engagements in Lahore.
“Makhdoom Ali Khan was also made bound for arguments today but now the court has been informed that he didn’t return from his overseas visit”. “Both lawyers representing the same side, one is the government’s counsel and another representing a political party,” CJP observed. “It seems you want to delay the matter. We want to decide on Article 63-A, it is an important issue,” Justice Bandial said.
“If the A.G. is reaching 3:00PM we will hear him till 4:00,” the CJP said.
BNP counsel Mustafa Ramday presenting his arguments said that Article 63-A has a complete procedure, the court could have looking towards Article 62 and 63 in case of absence of the procedure,” counsel Ramday said.
“It should be taken into sight that the constitution makers have kept the punishment of de-seating a member over defection,” he said. “Every defection is not necessary for some benefit, it could be purely over political differences,” the lawyer argued. “Adding further punitive action apart of de-seating will add to the political divisiveness,” he said.
“The election commission has rejected the reference against the MNAs. Half members of a political party voted to the other side but the party didn’t take any punitive action against its members,” BNP counsel argued.
“The constitution promotes the democracy and strengthens political party, mostly party heads do not act over defection. Article 63-A protects system of a political party, it also protect rights of a political party,” chief justice observed.
“Article 63-A make a member bound to four points of policy,” CJP remarked. “Article 63-A bound a member over the policy and prohibits defection,” Mustafa Ramday argued.
“If an assembly member defects in last six months of the assembly’s term in that situation the member will not have any punishment,” chief justice said. “Party heads also avoid punishing defectors,” Ramday said.
“A defecting member might convince the party head over his decision,” chief justice remarked. “Our political parties have not such level of democracy, the party head have dictatorship in his political party,” the counsel argued.
Article 63-A de-seats as member but not prevent from casting the vote, Ramday argued. “It means 63-A has a clear language,” Justice Mazhar Alam remarked.
After conclusion of BNP lawyer’s arguments, the court allowed Advocate General Khyber Pakhtunkhwa Shumail Butt to present his arguments.
KP advocate general said that Article 63-A should be read with Article 62, in that case there will be serious consequences of defection. “Two more forums also review the defection after the parliament,” he said. The election commission and the supreme court are two forums, he said.
The court later adjourned further hearing of the presidential reference for interpretation of Article 63-A till tomorrow.