Disqualification of dissidents: SC questions ‘inability’ of Parliament to take action

ISLAMABAD: The Supreme Court questioned when the Parliament has the power to insert disqualification of a member if he defects by not following the party line then why it did not do it.

A five-member bench, comprising Chief Justice Umar Ata Bandial, Justice Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar, and Justice Jamal Khan Mandokhel on Friday heard the Presidential Reference, filed under Article 186 of the Constitution and the President Supreme Court Bar Association (SCBA) Ahsan Bhoon petition filed under Article 184(3).

Justice Jamal Khan Mandokhel suggested that it would have been better if the President of Pakistan had held meeting with parliamentary parties’ leaders, adding as it had not happened then there was no need of framing questions in Reference. Attorney General Khalid Jawed Khan responded that ex-President Ghulam Ishaq Khan used to hold the parliamentary leaders meeting and then he dismissed the governments. “We don’t want it be repeated,” he added.

Justice Mazhar Alam Khan said so far, no defection has taken place but the government apprehending that its members will defect. The attorney general said the laws are made before an offence is committed. Justice Mazhar then stated person is punished when a crime is committed, adding the law (Article 63A) is very much clear. Justice Mandokhel said the stage of defection has not yet come, but the President has filed a Reference to seek the apex court’s opinion on Article 63A.

Justice Munib said in Article 64 there are two ways that a seat becomes vacant in the House. If a member resigns or remains absent for 40 days without leave of the House. He said if a member defects then he is de-seated not disqualified.

He remarked that when the Article 63A says that the consequence of defection is to de-seat the member and this way seat in the Parliament is vacant. He said the Parliament has the power to create qualification in Article 62 and disqualification in Article 63. He further said purpose in Article 63A is to create vacancy and not to disqualify the member.

The chief justice said when the Parliament has power to insert the disqualification in the Constitution or to disqualify a member through ordinary legislation if he defects, then it did not do it. The CJP asked; “What was the fear the Parliament did not go beyond the vacancy (in case of defection), while Article 62(1)(f) was retained in the Constitution and the word “Court or Law” was inserted in the said article.”

Justice Ijazul Ahsan said the Supreme Court has power to interpret the Constitution and the law. “We can refuse or interpret it. This is our prerogative we are constitutional court, and there is power and mandate of the apex court to interpret the constitutional provisions.” He said it is not a question before the bench that Article 63A is right or wrong, but what consequence would it follow; therefore, the Reference was sent to interpret it.

Justice Ijaz said on the ballot paper the name of the candidate appears before the party symbol. Once he (member) goes under the banner of the party symbol then he is bound by the party discipline.

SC stresses sanctity of constitution as tensions mount

The AGP argued that besides the elected members there are seats reserved for the women and the non-Muslim. He stated that the members (MNAs) elected on reserved seats for women and minorities do not receive votes from the people, and instead they are nominated by their parties. He informed some of the PTI dissident MNAs elected on reserved seats were also present at the Sindh House.

The AGP said the party leader plays an important role in the party. We have example of Quaid-i-Azam, who was the role model. The parties like Muslim League and the Congress thrived due to their leaders, adding this has happened in India and Bangladesh.

The AGP said in a parliamentary democracy, party meetings are held and issues are discussed, but MNAs are not supposed to be “rubber stamps”. If they don’t agree with the party’s decision, they may resign, he suggested, adding that differences with the party didnot mean going against the party discipline.

Justice Mandokhel remarked that the Constitution gave everyone the right to free expression of their views. “Should [an MNA] be disqualified for life for expressing their views?” he asked.

During the proceeding, Justice Bandial observed that the holy Quran mandated severe punishment for dishonesty. “A person who breaks trust is called a traitor,” he remarked.

“But does a member declare to be bound by the party?” he questioned, and then asked the AGP when should an MNA be declared a defector. He added that the Constitution did not specify anywhere that MNAs were required to be loyal to their parties.

“Article 62(1)(F) talks about qualification, not disqualification,” Justice Bandial said.

Justice Munib, too, asked whether Article 62(1)(F) would be applied upon violation of Article 63-A, noting that Article 63-A talked about vacating seat.

Here, Justice Mandokhel inquired if an MNA had ever resigned after casting their vote. AGP Khan replied that it had happened in India and the Supreme Court had declared the member a defector. “Nobody can be encouraged to deviate from the party,” he added.

Justice Mandokhel said the president could have called a meeting of political parties with representation in Parliament and discuss the issue with them before filing a presidential reference.

Justice Ahsan, here, remarked that the president had asked for the interpretation of the Constitution and the court could not drift away from that. “It is possible that the reference may be sent back,” he added.

Meanwhile, Justice Bandial said that the length of disqualification in Article 63-A can be included through the legislation. “If the vote is not counted, there’s no point in boarding another ship,” Justice Munib pointed out.

Justice Mandokhel, on the other hand, asked if a member had the right to expression under Article 63-A. He, however, observed, that if an MNA went against the party, he had to face consequences.

The AGP contended that under Article 63-A, no one had been disqualified so far, and that it was not necessary to prove that money had been accepted for voting against party line.

The bench directing the attorney general to complete the argument on Monday, adjourned it.

Copyright Business Recorder, 2022