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ISLAMABAD: The Supreme Court has noted that when the judgments were in favour of Pakistan Tehreek-e-Insaf (PTI) then justice was exemplary, but when it is against them the justice is “in tatters”.

A five-member bench, headed by Chief Justice Umar Ata Bandial on Tuesday 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).

Farooq H Naek, representing Pakistan Peoples’ Party, argued that the country is heading towards anarchy as they (the PTI leaders) are not ready to accept the Constitution, laws, and the apex court’s judgment. Upon that Justice Ijazul Ahsan remarked when the decisions were in their (PTI’s) favour then justice was extolled, but when it is against then justice is “in tatters”.

Justice Jamal Khan Mandokhail said the masses do not know what is written in the judgments, but accept what the party leaders tell them, adding if the party leaders say it was a bad judgment they accept that [and] start following them.

Naek explained how Article 63A was brought in the 1973 Constitution. He informed about the constitutional history to curb the menace of defection. He argued that the disqualification due to defection should be one time and it is till the term of the Assembly.

About Article 63-A, Justice Ijaz said prima facie the purpose of this article was to stop floor-crossing. “The court wants to examine if the punishment for defection is harsh enough to act as a deterrent,” he added. “What will be the sentence for defection, this is the actual question,” he said.

Justice Mandokhail asked if defection was considered a crime then why count the vote of such a person? “Is it a crime to vote against the party lines…what kind of crime is this that has been allowed by the Constitution,” he questioned.

The chief justice said the court gave its recommendations in a case regarding the Senate election but nobody followed that. “Why are political parties acting as neutral on defections,” he said, adding that defectors were given offices in other parties.

The PPP lawyer contended that Article 96 of 1973’s Constitution was to stop defections, but General Ziaul Haq omitted it for holding election on party-less basis. He said there was never intent to disqualify a member on defection. Justice Ijaz remarked you meant to say that if a member defects he will damage himself and destroy his relation with the majority party.

Justice Bandial said if a member casts a vote against the party lines during the fourth year of the government then it would probably take a year for the Election Commission of Pakistan (ECP) and the Supreme Court to decide on the case against the said member. However, by the time reference would be decided the assemblies would have completed their term and the member would not face any consequences, such as de-seating.

He informed that at the time of introducing 18th Amendment the committee members were divided as some wanted the removal of MP for defection, while others wanted that such members should remain part of the parliament.

Justice Ijaz observed that the purpose of Article 63-A was to prevent defection from the party. “However, it remains to be seen whether the punishment for switching parties is strong enough to shake the conscience of a lawmaker concerned.” He noted that it had to be decided whether defection was right or wrong in the first place. “History tells us that defection doesn’t only take place because one’s conscience is awakened,” Justice Ijaz said, adding; “What will be the punishment for defection is the question.”

Naek contended that the defecting lawmaker would be disqualified only until the completion of the remaining term of the government.

The court adjourned the case until today (Wednesday).

Copyright Business Recorder, 2022


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