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ISLAMABAD: The Supreme Court of Pakistan Tuesday noted that violation of Article 63(g) of the Constitution is more serious a crime than defection by the parliamentarian under Article 63A.

Justice Mazhar Alam Khan Miankhel, in response to arguments of the Pakistan Tehreek-e-Insaf (PTI) chairman’s counsel that it was an affront to Article 63A, if a lawmaker de-seated for defection return to the Parliament within 15 days and also become a minister, said that violation of Article 63(3) is a bigger crime than defection.

He said; “In my eyes, the violation of Article 63 (1) (g), which pertains to propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan or defame or ridicule the judiciary or the armed forces of Pakistan is more serious crime.”

Babar Awan, who was representing Imran Khan, replied that it was a “serious crime”.

The observation by the judge comes amid criticism of the judiciary by the PTI chairman, who has been questioning why courts opened their doors late in the night before his ouster as prime minister through a no-confidence motion. The judiciary has defended its actions, with the Islamabad High Court (IHC), stating that matters of extreme urgency can be brought to the attention of the court at any time.

A five-judge bench, headed by Chief Justice Umar Ata Bandial, on Tuesday heard the Presidential Reference for interpretation of Article 63A of the Constitution, Supreme Court Bar Association and PTI Chairman Imran Khan’s petitions filed under Article 184(3) of the Constitution.

Earlier, Babar Awan argued that defaulters of utility bills were also not eligible to become a member of parliament. Upon that Justice Jamal Khan Mandokhail asked whether the lawmaker would continue to remain disqualified even if he had paid outstanding utility bills before the next election. He replied that the lawmakers’ disqualification would end once the outstanding dues are paid.

Awan contended where the time period is not mentioned in the Constitution then the disqualification is for life. Justice Ijaz observed only disqualification under Article 62(1) (f), which sets the precondition for a member of parliament to be “sadiq and ameen” is lifelong. However, he stated that the “disqualification will remain in place until the declaration is cancelled by the court.” “Disqualification for the non-payment of utility bills cannot be for life,” he added.

Justice Muneeb inquired how Article 63-A was related to Article 62(1) (f). Babar Awan replied that his argument was that Article 63-A itself disqualifies dissident lawmakers for life. “Should 26 lawmakers be allowed to abandon the party,” he asked. In this way, the party with the majority would come in the minority, he said.

Justice Ijaz remarked that you want the (interpretation of) Article 63-A to be so rigid that no lawmaker can defect.

The PTI’s counsel argued that a “surgical strike” was inserted in Article 63-A under the 18th Amendment to get rid of the cancer that was defection. He added that the 18th Amendment was unanimously passed by parliament.

At one point, he also gave the reference of the SC verdict which legitimized former military ruler General Pervez Musharraf’s martial law. “The apex court gave Musharraf the power to amend the Constitution,” he said, adding that the powers of the court were unlimited. “Some say the judiciary should be independent while others say it should be subservient to the Constitution. Parliament, the judiciary and the executive should all be subservient to the Constitution,” Justice Mandokhail said.

Only the judiciary can ensure everyone is subservient to the Constitution, Awan responded. The judiciary not only interprets the Constitution but also makes laws clear with its decisions, he said.

After Awan, the counsel for Pakistan Muslim League-Quaid (PML-Q), Azhar Siddique, argued that British lawmakers resign even if they are suspected of indulging in corruption worth a mere one pound. On the other hand, those disqualified by our courts for not being sadiq and ameen are not ready to accept the verdict, he said.

Justice Mandokhail asked whether an independent lawmaker took an oath when they joined a political party. “Does the independent lawmaker swear to abide by the party’s each and every decision.” he asked.

The PML-Q’s counsel replied that the lawmaker accepts all the conditions before joining the party. Justice Mandokhail also stated that Article 63-A provides a forum for taking action against dissident members. Siddique added that dissident lawmakers could also not cast their vote.

At one point, Justice Mandokhail observed that the punishment under Article 63-A was to rescind the membership of the dissident lawmaker. “Do you want to increase the punishment for a dissident lawmaker,” he asked.

Siddique replied by saying that his argument did not concern the extension in the lawmaker’s punishment. “Article 63-A is a protective wall against a no-confidence motion,” he argued.

Justice Ijaz also observed that it had become “tradition” for a government to be overthrown by throwing money at people. “The future of 220 million people is put at stake with the buying and selling of a few people,” he said. Justice Ahsan also observed that the practice of buying and selling lawmakers with the purpose of overthrowing the government should come to an end.

Siddique also referred to the Charter of Democracy — a 36-point document signed by the PPP and PML-N in May 2006, primarily with the aim to end dictatorship.

To this, Justice Mandokhail remarked that it would have been a part of the Constitution if all parliamentary parties had been in agreement over the document. He further said that no one had barred the party leader from punishing dissident members. The party leader is only required to specify that the member has defected, he said.

Siddique said that departmental inquiries should be initiated against the corrupt, as well as criminal proceedings. “Would it not be more appropriate that action is taken once horse-trading and corruption are proven?” asked Justice Mandokhail. Siddique; however, contended that proving corruption and defection were separate matters.

Justice Mandokhail also pointed out that two of the PML-Q’s members had voted against the party line but the PML-Q chief had opted not to take action.

Justice Ijaz said that horse-trading posed a risk to “democracy and the system”. “It is not possible that one resorts to wrongdoing and then also benefits from it. How can those guilty of a crime be allowed to benefit from it?” he wondered.

The case was adjourned until today (Wednesday).

Copyright Business Recorder, 2022


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