SC to resume hearing in Presidential Reference after Eid holidays

ISLAMABAD – The Supreme Court of Pakistan will resume hearing in the Presidential Reference for interpretation of Article 63A of the Constitution after Eid holidays.

A five-member bench of the apex court headed by Chief Justice of Pakistan Justice Umar Ata Bandial will conduct hearing of the Presidential Reference for interpretation of Article 63A of the Constitution.

On the last hearing of reference, Justice Muneeb Akhtar said that the honourable way out for dissident lawmakers is to resign and go home. Makhdoom Ali Khan then said that what will happen if the members disagree with the party on the money bill and resign? Whether the government would not lose majority to pass the bill?

The PML-N counsel stated that disloyalty to the party was different from disloyalty to the state. He explained that the members may disagree with the party’s decisions for a number of reasons. He added that a member may particularly feel that the PM has become a person who is not able to lead the country, the tax law is black law, and that a constitutional amendment bill is bad.

The counsel argued that on the advice of the ex-PM Imran Khan, Presidential Reference was filed under Article 186 of the Constitution asking the court to decide that a member who has committed defection stand disqualified for life or to the term of the assembly. He said that the same person (Imran Khan) later on filed a constitutional petition under Article 184(3) of the Constitution with the prayer to declare that any sort of defection by the members of the National/Provincial Assemblies would amount to imposing a lifetime ban from contesting election.

The Chief Justice said that one aspect of the advisory jurisdiction is to answer the important questions raised in the Reference. He also said, “We like to know what is (our) jurisdiction to see through?” “Are we the prisoners of the word used in the Constitution or have power to change them?” He further said, “We are a nascent democracy and we all have to make efforts to take the country to the path of mature democracy. It happens when debates take place.”

Interpretation of Article 63A of Constitution

Makhdoom Ali Khan said that a beleaguered PM who appeared to have lost majority in the National Assembly filed the Reference when the motion of no-confidence vote was submitted against him. He said that the timing is so important. The counsel quoted a verse of Seamus Heaney that “Do not hope on this side of the grave… But then, once in a lifetime the longed-for tidal wave of justice can rise up, and hope and history rhyme.”

At this, the Chief Justice said that what we can hope from our conscience is to do what is right and in accordance with the Constitution, and pray for the benefit of the people of this country.

Makhdoom Ali Khan said that in the no confidence vote against the ex-PM Imran Khan no MNA from the other side (PTI) voted contrary to the party direction. He said that the Reference has not survived the time. The CJP said that with the passage of time some events have taken place.

Onset of the hearing, Ali Zafar argued that a member who commits the acts prescribed in Article 63A contrary to the directions issued by the parliamentary party to which he belongs, then the person would be breaching the trust reposed in him by the people who elected him and the parliamentary party to which he belongs.

He said that the purpose of Article 63-A was to end horse-trading. “Violation of 63-A is a violation of the Constitution,” he said adding that votes cast by dissident lawmakers would not be counted as per the concerned article.

“There are court decisions on the role and importance of political parties. Independents and ticket holders of political parties become members (of the National Assembly) and Article 63-A is related to a member of the latter,” he said.

Justice Ijaz questioned that whether Zafar meant the votes would not be counted under Article 63-A, to which the counsel replied that he was saying the same in light of judicial interpretation.

The judge observed that counting of votes and dissent were two separate matters, asking whether a lawmaker’s vote would not be counted even if there were no instructions from the party head.

Ali Zafar replied that the party head would first issue instructions about voting and then the declaration regarding dissident members.

Justice Mandokhail then repeated Justice Ahsan’s question about counting of votes in the absence of instructions from the party head, observing that if votes were not counted, it would mean no wrong had been committed since the concerned Article would come into force only after the vote has been cast. He observed that according to Article 63-A, a dissident lawmaker could cast his vote but he would subsequently lose his seat.

Justice Jamal Khan Mandokhail, responding to the arguments of Barrister Ali Zafar, said if the defection is like cancer then why not the political parties treat it themselves and why have they approached the Supreme Court to interpret the defection clause.

He asked the PTI counsel that there are also other political parties before the court, but their view is that the Supreme Court should refrain from interpreting the language used in Article 63A. He said that Pakistan Tehrik-e-Insaf is the only political party which wants the court to interpret the said article. He further asked from the PTI counsel why not the court accepts the arguments of the majority parties.

Barrister Zafar argued that while exercising this purposive approach the court can enquire into the history, identify the mischief and even apply a strained meaning when literal meaning is insufficient. He contended that the Courts can mould and creatively interpret constitutional provisions

Makhdoom Ali Khan, representing PML-N, argued that the Reference was filed in a way to bypass the requirement of Article 239 to amend the Constitution. Upon that Justice Bandial remarked that you meant to say that to press for interpretation amounts to make amendment in the Constitution.

Justice Ijaz ul Ahsan observed that it is clear that it is the job of the Parliament to legislate, and not to interpret the laws, which is the domain of the courts. He asked the counsel that what you are saying is that when the Parliament can’t interpret so it is not the job of the Court to modify or amend the laws.

Azhar Siddique representing Pakistan Muslim League-Quaid adopted the arguments of Ali Zafar.


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