ISLAMABAD - Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial said Wednesday that if opinion is given on Presidential Reference then what will be left for the apex court to decide in appeal under Article 63A of the Constitution.
A five-member bench of the apex court headed by Chief Justice Umar Ata Bandial and comprising Justice Ijaz Ul Ahsan, Justice Munib Akhtar, Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail heard the Presidential reference, filed under Article 186 of the Constitution and the petition of President Supreme Court Bar Association (SCBA) Ahsan Bhoon, filed under Article 184(3).
During the hearing, Justice Bandial remarked that defection is betrayal and it is the opposite of loyalty, which is a fundamental principle of the Constitution. The CJP added that Article 5 of the Constitution focuses on loyalty and it is the duty of every member of the parliament to be loyal to his party.
However, he further said that the party head may condone the defection by not forwarding a declaration to the National Assembly Speaker. Then, counsel for the Pakistan Peoples Party (PPP) Farooq H Naek said that disloyalty was a harsh word.
Justice Ijaz ul Ahsan observed that if disloyalty was tantamount to dishonesty then Article 62(1) (f) of the Constitution will be applicable on the lawmaker, and they will be disqualified for life. In response to Justice Ahsan’s comments, Naek said that a party lawmaker is “not a slave” that they have to follow every order.
| Chief Justice Umar Ata Bandial says court can ask whether a vote has been cast against party lines or lawmaker deviated from party policies
However, Justice Ahsan wondered whether a government employee was also a slave and added that every party has certain rules and regulations which must be observed. Then, Justice Munib Akhtar remarked that a lawmaker is sworn in as a party representative, not as an individual. Naek adopted the stance that no lawmaker takes an oath to follow every order of the party chief.
Justice Ahsan observed that political parties are the “backbone” of a parliamentary system of government. He remarked that how the system could be run if its backbone is hit by cancer.
But, Naek insisted that Article 62(1) (f) could not be applied on account of defection.
Advocate General Sindh Salman Talibud Din said that by punishing the members for defection under 62(1)(f) will make the Article 63A redundant. He said that Article 63A is the way toward becoming mature democracy that if someone defects he should go back to the people. It depends upon people if they want to re-elect that member again or not. It should be left to the voters. He pleaded that the reference should be returned unanswered.
Justice Bandial said that the law (Article 63A) was passed in 1998 and noted that there is power with the party head to condone the defection of his members. Naek said that if there is rigidity in politics then there will be anarchy in the country. He argued that is it not enough that a member who does not follow party discipline is de-seated.
Naek said that morality is different from society to society and region to region. He contended that in Article 63A no time limit is given for the disqualification on defection.
At this, Justice Ahsan said that the time limit was not mentioned in Article 62(1)(f), but the Supreme Court interpreted it. He said that defection is treated as the constitutional offence. The judge questioned that if defection is not breach of trust and the member does not remain sagacious, righteous and honest.
Naek replied that defection is the political act and does not fall in the domain of morality. Justice Bandial said when the case started the attorney general talked about morality. He also talked about trust or ‘amanat’ and the four considerations in Article 63A. Justice Bandial said that betrayal is opposite to loyalty and loyalty is one of the fundamental principles of the Constitution, which is described in Article 5.
The Chief Justice said that they have to read Article 63A not in isolation, but has to read constitution as a whole. Naek argued that in the nomination paper a member declares on oath that “I belong to a certain party.” Justice Ijaz said that belonging to a political party means agreeing to all the terms and condition of the party. The member commits that he would follow the party terms.
Farooq Naek asked from the bench whether they wanted that the members become slave of the party. He argued that the members get vote not because of the party but because of his character and manner. Justice Ijaz said that if the member wants to maintain his character then he should resign from seat and come back again by contesting the election. Later, the bench adjourned the hearing till Thursday (today) for further proceedings.
APP ads: The Chief Justice said if a person was disqualified for dishonesty, he was also disqualified for the next election. After completion of arguments by Advocate Farooq H Naek, Advocate General of Sindh Salman Talibuddin said that lawmakers who sold their votes for money could be asked to resign.
He said that the court was being unnecessarily dragged into politics. He said that Article 63-A was a step towards mature democracy. After the arguments of Advocate General Sindh, the Chief Justice asked whether Babar Awan would give arguments. Ali Zaffar said that Babar Awan would raise some points on the constitutional petition.
The Chief Justice said that Article 63-A made loyalty conditional on party policy on four occasions and loyalty was a basic constitutional principle. The purpose of Article 63A was to ensure loyalty to the party, he added. Justice Ijaz then asked whether Articles 62 and 63 should be removed from the Constitution.
The chief justice observed that Article 63-A had been invoked in only one instance since 1998 which meant that it was not taken seriously by party heads. He said why defecting lawmakers were later welcomed back to the party’s folds. The reason was the flexibility in politics, he added.
The Chief Justice said that while deciding on a case related to Article 63-A, the court could ask several questions. He said that the court could ask whether a vote been cast against party lines or had the lawmaker deviated from party policies? He further asked could the court determine anything if a vote was cast against party lines. Advocate Raza Rabbani said that he would answer these questions of the court Thursday (today).
A five-member bench of the apex court headed by Chief Justice Umar Ata Bandial and comprising Justice Ijaz Ul Ahsan, Justice Munib Akhtar, Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail heard the Presidential reference, filed under Article 186 of the Constitution and the petition of President Supreme Court Bar Association (SCBA) Ahsan Bhoon, filed under Article 184(3).
During the hearing, Justice Bandial remarked that defection is betrayal and it is the opposite of loyalty, which is a fundamental principle of the Constitution. The CJP added that Article 5 of the Constitution focuses on loyalty and it is the duty of every member of the parliament to be loyal to his party.
However, he further said that the party head may condone the defection by not forwarding a declaration to the National Assembly Speaker. Then, counsel for the Pakistan Peoples Party (PPP) Farooq H Naek said that disloyalty was a harsh word.
Justice Ijaz ul Ahsan observed that if disloyalty was tantamount to dishonesty then Article 62(1) (f) of the Constitution will be applicable on the lawmaker, and they will be disqualified for life. In response to Justice Ahsan’s comments, Naek said that a party lawmaker is “not a slave” that they have to follow every order.
| Chief Justice Umar Ata Bandial says court can ask whether a vote has been cast against party lines or lawmaker deviated from party policies
However, Justice Ahsan wondered whether a government employee was also a slave and added that every party has certain rules and regulations which must be observed. Then, Justice Munib Akhtar remarked that a lawmaker is sworn in as a party representative, not as an individual. Naek adopted the stance that no lawmaker takes an oath to follow every order of the party chief.
Justice Ahsan observed that political parties are the “backbone” of a parliamentary system of government. He remarked that how the system could be run if its backbone is hit by cancer.
But, Naek insisted that Article 62(1) (f) could not be applied on account of defection.
Advocate General Sindh Salman Talibud Din said that by punishing the members for defection under 62(1)(f) will make the Article 63A redundant. He said that Article 63A is the way toward becoming mature democracy that if someone defects he should go back to the people. It depends upon people if they want to re-elect that member again or not. It should be left to the voters. He pleaded that the reference should be returned unanswered.
Justice Bandial said that the law (Article 63A) was passed in 1998 and noted that there is power with the party head to condone the defection of his members. Naek said that if there is rigidity in politics then there will be anarchy in the country. He argued that is it not enough that a member who does not follow party discipline is de-seated.
Naek said that morality is different from society to society and region to region. He contended that in Article 63A no time limit is given for the disqualification on defection.
At this, Justice Ahsan said that the time limit was not mentioned in Article 62(1)(f), but the Supreme Court interpreted it. He said that defection is treated as the constitutional offence. The judge questioned that if defection is not breach of trust and the member does not remain sagacious, righteous and honest.
Naek replied that defection is the political act and does not fall in the domain of morality. Justice Bandial said when the case started the attorney general talked about morality. He also talked about trust or ‘amanat’ and the four considerations in Article 63A. Justice Bandial said that betrayal is opposite to loyalty and loyalty is one of the fundamental principles of the Constitution, which is described in Article 5.
The Chief Justice said that they have to read Article 63A not in isolation, but has to read constitution as a whole. Naek argued that in the nomination paper a member declares on oath that “I belong to a certain party.” Justice Ijaz said that belonging to a political party means agreeing to all the terms and condition of the party. The member commits that he would follow the party terms.
Farooq Naek asked from the bench whether they wanted that the members become slave of the party. He argued that the members get vote not because of the party but because of his character and manner. Justice Ijaz said that if the member wants to maintain his character then he should resign from seat and come back again by contesting the election. Later, the bench adjourned the hearing till Thursday (today) for further proceedings.
APP ads: The Chief Justice said if a person was disqualified for dishonesty, he was also disqualified for the next election. After completion of arguments by Advocate Farooq H Naek, Advocate General of Sindh Salman Talibuddin said that lawmakers who sold their votes for money could be asked to resign.
He said that the court was being unnecessarily dragged into politics. He said that Article 63-A was a step towards mature democracy. After the arguments of Advocate General Sindh, the Chief Justice asked whether Babar Awan would give arguments. Ali Zaffar said that Babar Awan would raise some points on the constitutional petition.
The Chief Justice said that Article 63-A made loyalty conditional on party policy on four occasions and loyalty was a basic constitutional principle. The purpose of Article 63A was to ensure loyalty to the party, he added. Justice Ijaz then asked whether Articles 62 and 63 should be removed from the Constitution.
The chief justice observed that Article 63-A had been invoked in only one instance since 1998 which meant that it was not taken seriously by party heads. He said why defecting lawmakers were later welcomed back to the party’s folds. The reason was the flexibility in politics, he added.
The Chief Justice said that while deciding on a case related to Article 63-A, the court could ask several questions. He said that the court could ask whether a vote been cast against party lines or had the lawmaker deviated from party policies? He further asked could the court determine anything if a vote was cast against party lines. Advocate Raza Rabbani said that he would answer these questions of the court Thursday (today).
