Presidential reference: SC expresses displeasure over absence of AGP, PM’s counsel

ISLAMABAD: The Supreme Court took exception to the delay in Presidential reference on Article 63A of the Constitution due to the non-appearance of Attorney General for Pakistan (AGP) Ashtar Ausaf and Prime Minister Shehbaz Sharif’s counsel Makhdoom Ali Khan despite their consent.

In the last hearing on May 11, the apex court had asked Khan and the AGP to make a submission on Monday (May 16). However, at the onset of Monday’s hearing, Additional Attorney General Aamir Rehman informed the bench that the AGP is on his way from Lahore and may reach Islamabad by 3:30 or 04:00 pm. He requested the bench to hear the AGP arguments tomorrow (Tuesday).

Chief Justice Umar Ata Bandial, heading a five-judge bench, said; “We on the request of Ausaf and Makhdoom’s associate, had adjourned the case until today.” He said both the counsels are representing the same client and due to their non-appearance the matter is being delayed.

The bench heard the Presidential reference for the interpretation of Article 63A of the Constitution, Supreme Court Bar Association and Pakistan Tehreek-e-Insaf Chairman Imran Khan’s petitions filed under Article 184(3) of the Constitution.

Mustafa Ramday, representing Balochistan National Party (BNP), argued how the apex court could declare to punish a person without the process of trial. Upon that the chief justice asked him whether he is saying it will be violative of Article 10A. He further asked him that the court do not validate the highest punishment for defection under Article 63A.

Mustafa said the democracy in Pakistan is flourishing and it is four decades old. He questioned whether there is democracy in the political parties, adding the political process has to start within the parties. He said when the penalty is provided in Article 63A then there is no need for the Court to read in the Constitution. “We are already suffering extreme polarisation in the society; therefore, the apex court should not involve in the political thicket.”

Justice Bandial said the Constitution promotes democracy and protects rights of the parliamentary party but is not committed to the individuals. It (the Constitution) goes for public interest and promotes and safeguards the salient features. Article 63A protects and promotes democracy and the rights of the parliamentary party in a system where ethics and rules operate. Mustafa said his client party may not be extremely popular but ideologically it is very strong.

Mustafa argued that in Wukula Mahaz case the apex court, in no ambiguous terms held that since the legislature has constituency powers in addition to legislative powers; therefore, the validity of a provision of the Constitution cannot be tested. It can; however, only be interpreted. He said under Article 63A a member shall, subject to the rights and remedies, suffer de-seating, only, if he violated a mandate as prescribed in the said article.

Justice Ijazul Ahsan questioned whether the political parties do not have rights under Article 17 of the Constitution. He said it is not the right of a few members to derail and weaken the democracy by giving votes contrary to the party’s direction. Mustafa remarked how strengthening and securing the rights of the Quaid/ head of the party will empower the democracy, adding by taking away the rights of the individuals we will be creating a Frankenstein. He said this way the Doctrine of Checks and Balances, the right available to the majority members of the House, to vote out the prime minister will diminish.

He said that the defection is deprecating or disapproving but it is not prohibited in the Constitution. “My focus is on the rights of the individuals and not the party.” The Constitution does not condone such an act (defection) but looks down upon them (the defectors).

The BNP counsel argued why each time the Supreme Court’s shoulder is used? Why not the parliament tackles such a situation itself? Upon that Justice Ijaz said when they (the MPs) cannot settle their dispute then it is the Court which decides the disputes and interprets the Constitution.

The lawyer pleaded with the Court to return the Reference to the President. He said if the apex court will interpret Article 63A then it would make Article 95 of the Constitution redundant. Justice Bandial questioned should the members of the party be allowed under Article 95 to vote against their own prime minister. He said, if this is the case, then there is no need for political parties.

At the end of the proceeding, the chief justice put some questions, whether the party head has the power to override the directions of the parliamentary party, and in that case, he can select whether to impose liability on the offending legislator. Does he have the power to condone the wrong committed to the party? If he has this power, then democracy is mockery and the direction issued by the party is nothing, he remarked. What do we do to curb the wrong or allow it to happen?

Mustafa contended that instead of an ‘elective dictator’ (party head) there is a need to strengthen the parliamentary parties. The case was adjourned until today (Tuesday).

Copyright Business Recorder, 2022