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ISLAMABAD: The Supreme Court questioned why the political parties could not deal with the “cancer” of defection themselves, rather asking the court to render its opinion on it.

A five-member bench, headed by Chief Justice Umar Ata Bandial, heard the Presidential Reference for interpretation of Article 63A of the Constitution.

Justice Jamal Khan Mandokhail, responding to the arguments of Barrister Ali Zafar, said if the defection is like cancer then why not the political parties treat it themselves and why have they approached the Supreme Court to interpret the defection clause.

He asked the PTI counsel that there are also other political parties before the Court, but their view is that the Supreme Court should refrain from interpreting the language used in Article 63A. He said Pakistan Tehreek-e-Insaf is the only political party which wants the Court to interpret the said article. He further asked the PTI counsel why not the court accepts the arguments of the majority parties.

Barrister Zafar had argued that while exercising this purposive approach the Court can enquire into the history, identify the mischief and even apply a strained meaning when literal meaning is insufficient. He contended that the Courts can mould and creatively interpret constitutional provisions

Makhdoom Ali Khan, representing the PML-N, argued that the Reference was filed in a way to bypass the requirement of Article 239 to amend the Constitution. Upon that Justice Bandial remarked that you mean to say that to press for interpretation amounts to making amendment in the Constitution.

Justice Ijazul Ahsan observed that it is clear that it is the job of the Parliament to legislate, and not to interpret the laws, which is the domain of the Courts. He asked the counsel that what you are saying is that when the parliament can’t interpret so it is not the job of the Court to modify or amend the laws.

The PML-N counsel stated disloyalty to the party was different from disloyalty to the state. He explained that the members may disagree with the party’s decisions for a number of reasons. A member may particularly feel that the prime minister has become a person who is not able to lead the country, the tax law is a black law, and that a constitutional amendment bill is bad.

Justice Muneeb Akhtar then said, the “honourable way out for dissident lawmakers is to resign and go home”.

Makhdoom Ali Khan then said what will happen if the members disagree with the Party on the money bill and resign? Whether the government would not lose majority to pass the bill?

The counsel argued on the advice of the ex-PM Imran Khan, the Presidential Reference was filed under Article 186 of the Constitution, asking the Court to decide that a member who has committed defection stand disqualified for life or to the term of the Assembly. He said the same person (Imran Khan) later on filed a constitutional petition under Article 184(3) of the Constitution with the prayer to declare that any sort of defection by the members of the national/ provincial assemblies would amount to imposing a lifetime ban from contesting election.

The chief justice said that one aspect of the advisory jurisdiction is to answer the important questions raised in the Reference. “We would like to know what (our) jurisdiction to see through is.”

“Are we the prisoners of the word used in the Constitution or have power to change them?”

He further said; “We are a nascent democracy,” adding we all have to make efforts to take the country to the path of a mature democracy. It happens when debates take place.”

Makhdoom Ali Khan said a beleaguered PM who appeared to have lost the majority in the National Assembly filed the Reference when the motion of no-confidence vote was submitted against him. He said the timing is so important. The counsel quoted a verse of Seamus Heaney that “Don’t hope on this side of the grave… But then, once in a lifetime the longed-for tidal wave of justice can rise up, and hope and history rhyme.”

Upon that the chief justice said that what we can hope from our conscience is to do what is right and in accordance with the Constitution, and pray for the benefit of the people of this country.

Makhdoom Ali Khan said in the no confidence vote against the ex-PM Imran Khan no MNA from the other side (PTI) voted contrary to the party direction. He said the Reference has not survived the time. The CJP said with the passage of time some events have taken place.

At the onset of the hearing, Ali Zafar argued that a member who commits the acts prescribed in Article 63A contrary to the directions issued by the parliamentary party to which he belongs then the person would be breaching the trust reposed in him by the people who elected him and the parliamentary party to which he belongs.

He said the purpose of Article 63-A was to end horse-trading. “Violation of 63-A is a violation of the Constitution,” he said, adding that votes cast by dissident lawmakers would not be counted as per the concerned article.

“There are court decisions on the role and importance of political parties. Independents and ticket holders of political parties become members (of the National Assembly) and Article 63-A is related to a member of the latter,” he said.

Justice Ijaz questioned whether Zafar meant the votes would not be counted under Article 63-A, to which the counsel replied that he was saying the same in light of judicial interpretation.

The judge observed that counting of votes and dissent were two separate matters, asking whether a lawmaker’s vote would not be counted even if there were no instructions from the party head.

Ali Zafar replied that the party head would first issue instructions about voting and then the declaration regarding dissident members.

Justice Mandokhail then repeated Justice Ahsan’s question about counting of votes in the absence of instructions from the party head, observing that if votes were not counted, it would mean no wrong had been committed since the concerned Article would come into force only after the vote has been cast.

He observed that according to Article 63-A, a dissident lawmaker could cast his vote but he would subsequently lose his seat.

Azhar Siddique representing Pakistan Muslim League-Quaid adopted the arguments of Ali Zafar. The case was adjourned after the Eid holidays.

Copyright Business Recorder, 2022

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