| Why court should deal with political matters when its decisions
are criticised in rallies, asks Chief Justice Umar Ata Bandial
| Parliament has not included lifetime disqualification in Article 63A; how can Supreme Court pass the order then: Justice Mandokhail

Presidential Reference

ISLAMABAD   -  Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial on Monday said that why the apex court should deal with the political matters when its decisions are criticised in the rallies.

A five-member bench of the apex court comprising Chief Justice Umar Ata Bandial, Justice Ejaz-ul-Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail heard the Presidential Reference, filed under Article 186 of the Constitution and the President Supreme Court Bar Association (SCBA) Ahsan Bhoon filed the petition under Article 184(3) along with the Pakistan Tehrik-e-Insaf (PTI) petition requesting the court to disqualify its dissident members of Parliament for lifetime.

During the hearing, first Justice Mandokhail and then Justice Bandial said that in the gathering of 10,000 to 15,000 people, the elected representatives of the people start criticizing the apex court judgment. Justice Mandokhail said that when it is not written in the Constitution to disqualify a member of the Parliament for life then how the Supreme Court could order for it. He said that by mistake or intentionally, the Parliament has not included the life time disqualification in Article 63A of Constitution then how they (judges) pass order that a person who defects his party would be disqualified for life.

Advocate General Islamabad argued that defection has taken place in Senate election and this Court has entertained the Reference. Justice Mandokhail said that many constitutional amendments were approved by the Parliament, but it did not include a clause in the Article 63A of the Constitution to make disqualification life-time. He questioned that can the apex court increase the sentence in Article 63A.

Justice Bandial said that while addressing gatherings of 10,000 to 15,000 people, the political leaders start criticizing the apex court verdict. He said that they expect that the leaders would show the character and the courage and defend the Supreme Court judgment. He added that they announced the judgment in accordance with the law and Constitution and the Constitution is sacrosanct. He further said that they like criticism, but they also have taken oath to protect and defend the Constitution and they will perform their duty in accordance with the law and the Constitution.

Justice Bandial said that in parliamentary democracy, the political party is given power. He said that the description of defection was given in the original Constitution under Article 96, which was before Article 63A. He, however, said that General Zia removed this article (96) and then the elections were held on non-party basis.

He said that then the apex court passed judgments and said that the assemblies elections should be held on the party base. Then in view of the Supreme Court judgments stringent law was made against the defection. He said that defection under the Constitution is not minor issue. He added that some people go to the extent that Article 6 should be applied to those, who defect their parties. He asked the advocate general that the federation case is about the consequence for defection.

The Chief Justice said that the Presidential Reference says that Article 62(1)(f) should apply on who defect their party and join other party. The reference also mentioned about defection as ‘khiyanat’ and matter of trust.

Babar Awan, who filed petition, on behalf of PTI Chairman Imran Khan, under Article 184(3) of Constitution, requested the bench to issue notices to the respondents (ECP, NA Speaker, NA Secretary & federation). The Chief Justice inquired from him whether he likes to adopt the argument of former attorney general Khalid Jawed. Babar Awan replied no and said he has taken summersault and did not talk about Article 5 of Constitution. He said, “I will argue on the instruction of his client.”

Justice Bandial remarked that questions raised in the petition are not by the Pakistan Tehrik-e-Insaf but those were from the President of Pakistan, which is still pending.

Mustafa Ramday, representing BNP, argued that President has asked the apex court to re-write the Constitution. Justice Munib inquired that if the constitutional amendment bill and the member does not agree with the party bill then he could resign from his seat and reduce the party’s majority in the Parliament as two-third majority is required to pass the constitutional amendment.

Ramday said that why extreme step of resignation is necessary, why the member should become slave of the party head, and if some members have given vote against the Prime Minister in no confidence motion then the party should move against them, but so far they have not done so.

Justice Ijaz asked that why they (Court) reward a member who defects his party, on whose ticket he entered into Parliament. He said that the Constitution dislikes the act of defection. He (member) has let down his party and the people who vote for him. Justice Muneeb said that it is destruction of the parliamentary party. He asked from the counsel whether he likes to say that the existence of Article 63A make Article 95 redundant.

Mustafa Ramday said that the decision to disqualify a member has to be based on solid evidence that defection has taken place. He said the question is whether the party head (PM) wanted to initiate a process against a member about he thinks has defected.

He said that the apex court had given its opinion on Reference, filed by the federation on Senate election. He said that nothing has happened against the persons who were alleged had taken money in Senate election. He said the Supreme Court was apprised that there are video of taking money for vote in Senate election. He questioned did the ruling party (PTI) do something against the MPAs who alleged to have taken money.

Babar Awan said that their cases were sent to ECP, but it took no action against them. The Chief Justice remarked that the party head is the protagonist. “It seems his [Imran Khan] party was not serious,” said the CJP. He said that the system has to be mature enough and the party head had to take initiative, but he left everything to the Supreme Court.

Justice Bandial said that the apex court through a judgment has settled the principle for taking suo motu by the Supreme Court. Now the suo motu is taken either a judge write letter to the CJP or on the complaint by the judges. He said that he is disappointed that the PTI did not follow the petition filed in Election Commission against the members who took money in Senate election.

Mustafa Ramday said that in the Senate election the PTI claimed its votes were sold to poll vote in favour of Hafeez Sheikh and Yousaf Raza Gilani won the seat. He said that every party in the Senate election said its votes were stolen, but nothing happened.

Babar Awan said that a female member of PTI had approached the ECP against its own members. He said that the ECP has to decide the case. Justice Bandial said that he requests the parties head to pursue their cases. Justice Mandokhail said this shows that there is no default in the Constitution, but in the political parties. Later, the apex court deferred the hearing till Tuesday (today).