Lifetime ban over defection severe penalty: CJP

ISLAMABAD – The Chief Justice of Pakistan Wednesday remarked that the Supreme Court wanted a stable government for the progress of the country and to end musical chair continued since 1970s.

He also observed that while defection was a ‘serious menace’ in parliamentary politics, imposing a lifetime ban on dissident lawmakers would be a ‘severe punishment’.

Chief Justice Umar Ata Bandial gave the remarks while heading a five-member bench during hearing the Presidential Reference for interpretation of Article 63A of the Constitution, Supreme Court Bar Association and PTI Chairman Imran Khan’s petitions filed under Article 184(3) of Constitution.

He said that for the progress of the country, a stable government is needed and the [game of] musical chair that has been taking place since the 1970s must end.

During the hearing, the Chief Justice said that the objections could have been raised on the no-confidence motion had debate taken on it in the assembly, but after the leave granted on the no-confidence motion on 28th March the National Assembly session was held on March 31, and the parliamentarians of PML-N, PPP and JUI on that day only wanted voting on the no-confidence motion, and not discussion.

He said that the Parliament is in the process of evolution and moving. He added, “We are gatekeeper and custodian of Constitution. We have to protect the Constitution.”

Justice Bandial said that twice there has been change in the law of defection i.e. in 1997 and 2010. He said that the Supreme Court intervenes only when there is deviation. He asked from Azhar Siddique, who represented PML-Q that he was asking for lifelong disqualification, which is the major step. He said that the Supreme Court has made disqualification under Article 62(1)(f) more tough.

Azhar Siddique read a report to tell the apex court that the many parliamentarians in the past wanted change in the Article 63A. He said that Waseem Sajjad had suggested the changes in the Article. Upon that Justice Jamal Khan Mandokhail said that but the majority of the Parliamentarians rejected his proposals and kept the punishment de-seating for defection.

Justice Ijaz ul Ahsan said that one way of dealing with defection could be de-seating but wondered what another punishment to go with it could be. He said that the party head issues declaration to the Speaker against a member, who violates the party direction. He, however, said that the court has to see when the defection occurred and what are the consequences.

Justice Ijaz said that even the Supreme Court called it (defection) a reprehensible act and cancer. He asked the PML-Q counsel that you want that the perpetrator goes escort free.

Mansoor Usman Awan, appearing on behalf of Supreme Court Bar Association (SCBA), argued that the defection is considered constitutional wrong and not offence and punishment provided in the Article 63A is the de-seating. He said that it is wrong when the member defect for monetary benefit, but it is not wrong if done for other reasons.

At this, Justice Ijaz questioned that was there any incident when the defection is documented. Usman replied that in the PPP government Mian Mehmood Kasuri has voted against Zulfiqar Ali Bhutto. Justice Muneeb said that Senator Raza Rabbani has acknowledged that he faltered and gave vote against his conscience.

Justice Mandokhail said that he knows one incident of Baluchistan where an MPA was awarded Senator seat in return for defecting his parliamentary party in the Baluchistan Assembly. The SCBA counsel argued that the continuity of the democracy and the system requires the election process.

Justice Muneeb Akhtar inquired from Usman that could Article 63A be read together with Article 17(2), which pertains to freedom of association, but also talks about the fundamental rights of the political parties. He said that the assertions were made that the vote of a defected member should not be counted, adding if his vote is not counted then why member would vote.

Justice Muneeb stated that the discipline of political parties was necessary for the parliamentary system of government. Usman argued that right of the political party is there, but the constitution commands that the members cast their vote with their conscience. Justice Muneeb then remarked that if they accept his argument then where the political party would stand?

The Chief Justice observed that Article 96 was included in 1973 Constitution as a compromise and the PPP wanted stability in the country after the breakup of East Pakistan. They wanted to cement the democratic system and galvanized the political parties.

He recalled that in 1985, Article 96 was omitted, and the elections in the same year were held on a non-partisan basis. He continued that the top court in Benazir Bhutto case ruled that elections should be held on a party basis and declared that political parties had rights. He added that subsequently, Article 63-A was added to the Constitution.

At the outset of hearing, Azhar Siddique argued that purpose of Article 63-A was to restrain lawmakers from defection, and that a constitutional amendment was also made to prevent the practice. He recalled that PTI lawmakers violated the party policy on April 16 and voted in favour of Hamza Shahbaz for his election as Punjab Chief Minister, [in the Punjab Assembly].

The Chief Justice remarked that the court could not comment on the disqualification reference [taken up] by the Election Commission of Pakistan. He added that the matter pertaining to defected lawmakers is pending with the ECP.” Justice Mazhar Alam Miankhel said that the matter had to be analyzed by the ECP, and an appeal against the decision of the election commission would eventually land in the apex court.

CJP Bandial inquired that if Attorney General for Pakistan (AGP) Ashtar Ausaf would assist the court in this matter. The AGP Ashtar Ausaf Ali, appearing before the bench, said that he would assist the court if it wanted. He added that a judicial debate would determine a direction in the case.

Later, the Chief Justice asked him to make submission on Monday (May 16) and adjourned the hearing.

 

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