| Five-judge bench hears presidential reference seeking interpretation of Article 63-A | Don’t link court proceedings
with Parliament procedure, CJP tells AGP

Chief Justice Umar Ata Bandial urges political parties to stand up for Constitution

Do you want to make party leader a King, Justice Jamal Khan Mandokhail asks AGP

If party line is not adhered to, the political party will be destroyed: Justice Muneeb Akhtar

Justice Ijaz Ul Ahsan says Article 63-A introduced to ensure discipline within the party

A member can’t be disqualified for life on the basis of defection: Justice Mazhar Alam Khan Miankhel

 

ISLAMABAD   -   The Supreme Court of Pakistan Thursday said that disregarding vote of a parliamentarian in the no-confidence proceedings against the prime minister is an insult.

A five-member larger bench of the apex court headed by Chief Justice Umar Ata Bandial said this while hearing the Presidential Reference, filed under Article 186 of the Constitution and the Supreme Court Bar Association (SCBA) President under Article 184(3). Justice Ijaz Ul Ahsan, Justice Muneeb Akhtar, Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail are also part of the larger bench. President Arif Alvi has sought the apex court’s interpretation of Article 63A of the Constitution.

The bench also issued notices to the provincial governments on the presidential reference ordering them to also submit written replies, which would facilitate the hearing. PTI, PML-N, JUI-F and the Supreme Court Bar Association (SCBA) also submitted their written replies in this matter.

During the hearing, Chief Justice Umar Ata Bandial said that no member could be stopped from casting vote and there is nothing in the constitution which says, not to count the vote of the member. He said that discounting the member’s vote is insult.

At the end of the proceeding, when Attorney General Khalid Jawed Khan requested that decision on the Reference be rendered before the voting, the Chief Justice said, “Do not link the Supreme Court proceeding on the reference with the Parliament proceedings on no-confidence motion.” The reference will not be decided within one or two days, he added.

During the hearing, Justice Bandial said, “We cannot ignore the process given in the Articles 63A,” and the procedure is provided in Article 63A for removing a member on defection. He asked the attorney general that the questions raised under the SC advisory jurisdiction are not to be decided by the Supreme Court, but the parliament itself. He said that we are not here to fill in the blanks. He also said the real question was how long a dissident MNA could be disqualified for. When his disqualification would be counted and when it will end?

Justice Mazhar said that the language of the Article 63A is very clear and a member removed due to defection can contest the next election. He said that qualification of parliamentarian is given in Article 62, and disqualification in Article 63, and the member could not be disqualified for life on the basis of defection.

The AGP then said is the court permitting the defection?

Justice Mandokhail questioned that whether an MNA’s vote could be counted in the proceedings conducted before his de-seating. He observed that there was no mention of not counting a vote in the 18th Amendment. The AGP said that members elected to the assembly were bound by party discipline.

Justice Mandokhail stated that all the members of the Parliament whether they belong to ruling or opposition party have right to cast vote and the defection under Article 63A will not be triggered unless he casts the vote.

Justice Bandial said that the votes are counted even if someone casts vote against the party, and when a member openly announces that he violated the party discipline then he will be de-seated. When that member challenges the decision before the Supreme Court it would be seen whether to grant stay or not.

Earlier, when the attorney general read out the Benazir Bhutto case judgment, wherein certain observations were given against horse-trading and floor crossing, the Chief Justice said that Article 63A was inserted through the 18th amendment in 2010.

Justice Ijaz asked the AGP that why the ECP jurisdiction is limited only to the explanation of the party head given in the declaration. He said that declaration of party head is examined by the ECP and it decides in favour of the member or the party, then the aggrieved party would move against the decision in the apex court. He referred the case of Gulalai.

Justice Muneeb observed that the purpose of Article 63-A was to stop defection from party policies. “The party’s collective opinion is above an individual’s opinion,” he said. “The collective opinion is important for the stability of democracy,” added the judge. He said that one interpretation of Article 63-A was that the vote of dissidents should not be counted.

Justice Akhtar further said the Constitution empowered the parliamentary party, and not the party’s leader.

Justice Ijaz said that Article 63A is the improvement to the process of Article 95, and Article 63A should be read with Article 95. The attorney general said that from the day one the defection remained the main concern. He said that in order to remove the cancer the lawmaker who defect should be defanged.

Justice Mazhar Alam Khan Miankhel said that by asking the member to vote in favour of party he is compelled to vote in the Parliament against his conscience. He has not contested election to resign and the party head may issue ticket to him (member) so that he cannot compel him to cast in his favour. If this happens then there will be no free will of members in the party.

Justice Jamal Khan Mandokhail recalled what had happened in the Balochistan Assembly. He said that no-confidence resolution was moved against their own party’s government. One member said that he is the party, while other member claimed he is the party. The attorney general argued that the member is elected because of the party ticket and the symbol.

Justice Mandokhail observed that all the decisions in the Parliament are taken with the majority. He questioned that whether in the developing country there is permission of floor crossing. The attorney general said that it is permitted in some western countries but there situation is different.

Upon that Justice Mandokhail questioned whether you wanted to make ‘Party Leader a King’. The AGP promptly replied no but he added that he also does not want lawmaker to become ‘lota’. He said that the freedom of the elected member is connected with the will of the voters of the constituency.

Justice Mandokhail said that the institution (political party) must be strengthened. He questioned whether there is debate in the party, and how much freedom is allowed to the members. He questioned what is the procedure of running a party?

Justice Bandial said that Article 63A is part of evolution of the parliamentary party in the country. The court observed that even if one is happy or unhappy you (member) have to be with the party. Discuss the difference within the party. He noted that Article 96 in the original constitution has provided the remedy, which is not in the Article 63A of the constitution. He said in Article 63A the procedure is given. Justice Mandokhail said that under Article 95, every voter can cast his vote and if he can cast vote then it must also be counted. The attorney general contended that defection from party lines could not be corrected.

Later, the bench deferred the case till today.

App ads: Discussing the issue of political gatherings in Red Zone, the AGP said the Jamiat Ulema-e-Islam-Fazl and Pakistan Tehreek-e-Insaf representatives had met the district administration. The JUI-F, he added, had requested for a sit-in on the Kashmir Highway- the main road that leads to the airport and workers of all parties would use it to come to Islamabad. According to the law, everyone was bound to end campaign 48 hours before voting.

The chief justice urged the political parties to stand up for the Constitution. Justice Ijaz said the purpose of democratic process was not to affect everyday affairs. Justice Muneeb Akhtar observed that the purpose of Article 63-A was to stop defection from the party’s policies. The party’s collective opinion was above an individual’s opinion, he added. He said the collective opinion was important for the stability of democracy.

He said one interpretation of Article 63-A was that the vote of dissidents should not be counted. The Constitution empowered the parliamentary party, and not the party’s leader, he added.

Justice Mandokhail said that every MNA had the right to vote in accordance with Article 95, which dealt with the procedure of bringing in a no-confidence motion against the prime minister.

Justice Ijaz questioned the attorney general about the inquiry the Election Commission of Pakistan (ECP) would conduct based on the party head’s declaration. He asked how the ECP would decide that declaration of defection from the party was correct or not. Whether the ECP’s work would be limited to examine that the procedure was followed.

Justice Mandokhail observed that the right to vote was granted to an individual and not to the party.

Justice Muneeb Akhtar remarked that voting against the policy of a political party weakened the system.

Justice Ijaz said Article 63-A had been introduced to ensure discipline within the party.

Justice Muneeb Akhtar observed that political parties were institutions that were weakened by disciplinary violations. If the party line was not adhered to, the political party would be destroyed, he added. The AGP said the Supreme Court had also previously adjudged that the political parties were institutions.