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Haseeb Bhatti
April 18, 2022
Chief Justice of Pakistan Umar Ata Bandial. – Photo courtesy Supreme Court/File
Chief Justice of Pakistan (CJP) Umar Ata Bandial, while hearing a presidential reference seeking its interpretation of Article 63-A on Monday, questioned why the Supreme Court should deal with political matters when its decisions are criticised at gatherings of "10 to 15,000 people".
The chief justice's comments come days after recently ousted prime minister Imran Khan publicly
asked the judiciary to explain why it felt the need to open its doors at midnight on April 9, hours before he was ousted from the Prime Minister's Office via a successful no-confidence motion against him in the National Assembly.
With the deadline set by the Supreme Court to hold voting on the no-trust move fast approaching after a marathon NA session, the apex court and the Islamabad High Court (IHC) had opened their doors beyond their notified timings. The vote was eventually held and saw Khan voted out from the top office.
In what was his first public address since
losing his government, Khan directly addressed the judiciary, and asked: "My dear judges, my judiciary, I have spent time in jail because of your freedom because I dream that one day the judiciary would stand with the weak people of the society, and not the powerful.
"I ask you, what crime had I exactly committed that you opened up the courts at midnight?"
The PTI chairman repeated the question at his Karachi rally as well on Saturday.
The chief justice, without naming anyone in particular, said today that the apex court should be respected. "The court fulfills its constitutional responsibilities. National leaders should defend court decisions.
"We are cursed for doing our jobs and protecting the Constitution. Why should the court get involved in your political matters?" he said while addressing Islamabad Advocate General Niazullah Khan Niazi.
"Protecting the Constitution is our responsibility. We will fulfill our responsibilities," Justice Bandial added.
"The court works 24 hours. No one has the need to raise a finger on the court proceedings," he remarked.
He made the remarks during the hearing of the reference filed by the PTI government before its ouster. Headed by CJP Bandial, a five-member bench including Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail is hearing the reference.
Request to adjourn hearing dismissed
At the outset of the hearing today, Additional Attorney General Chaudhry Amir Khan requested the apex court to adjourn the hearing in the wake of former attorney general Khalid Jawed Khan's resignation.
However, Justice Bandial dismissed his request and said that the attorney general's arguments had been completed. "In my opinion, we should keep hearing the presidential reference," he said.
PTI counsel Babar Awan urged the court to issue notices on party chairman Imran Khan's
petition, which was moved in SC earlier seeking a lifetime ban on defecting lawmakers.
Justice Bandial replied that the court was already hearing a case related to the matter highlighted in Khan's petition.
"All the respondents are here too. This is a case of constitutional debate," the CJP said, reiterating that the court would continue hearing the presidential reference.
Separately, Islamabad Advocate General Niazullah Khan Niazi told the court that he endorsed the former attorney general's arguments.
"The Supreme Court has given its ruling in the Panama verdict," he recalled. "The decision of the court is important [for] lifetime disqualification."
Niazi argued that a vote is a trust that a political party gives to an MNA. "Conscience can't be sold for money," he said, adding that lawmakers could be forced to pass anti-national legislation in return for money.
He said that the situation in Punjab was in front of everyone and "all the stakeholders are looking at the court."
The advocate general pointed out that dissident lawmakers could not even go out in public today.
'Matter should be discussed in parliament'
Meanwhile, Justice Mandokhail observed that some people were in favour of lawmakers being allowed to dissent while others were against it.
"The parliament has not clarified about lifetime disqualification," the judge stated and then wondered if the parliament had deliberately not mentioned it or if it was an oversight.
Justice Mandokhail pointed out that the parliament was still in existence, adding that the Article should perhaps be discussed in the house. "Why are you bringing this matter to the court?"
At this, Niazi said that the court was responsible for interpreting the Constitution. "Votes are being sold even after Senate elections," he added.
Justice Mandokhail, however, interjected that the parliament should be allowed to make amendments itself.
Violation of 63-A not 'treason'
Justice Bandial observed that political parties were one of the founding blocks of parliamentary democracy and they have been given protection in four circumstances under Article 63-A.
The CJP recalled that General Ziaul Haq had removed the clause of restriction on dissenting from party lines from the Constitution.
"Amendments to the Constitution were made in 1998 when decisions on horse-trading were taken," he said. "In 2010, under the 18th Amendment, Article 63-A was included."
Justice Bandial pointed out that violating the Constitution was not a small matter.
"Many people violate the Constitution and then have Article 6, which is related to treason, [applied to them]," he said, adding that violating Article 63 cannot be turned into a case of treason.
According to the presidential reference, Justice Bandial continued, Article 62(1) — which sets the precondition for a member of parliament to be "sadiq and ameen" (honest and righteous) — should be applicable to dissident lawmakers.
The court would decide the consequences of violating the Constitution, whether the MNA concerned leaves [the party] or pays a price, the CJP said.
However, the Islamabad AG said that dissenting from party policies meant deviating from the oath of the parliament.
But Justice Mandokhail asked that if lifetime disqualification came under Article 63-A, what would be the significance of Article 95 then.
"The matter of Article 95 is not in front of the court right now," Niazi replied.
Justice Mandokhail then asked if the court could include the clause of lifetime disqualification itself.
"The court has already decided on lifetime disqualification while interpreting Article 62(1)(f)," Islamabad AG Niazi said as he completed his arguments.
PTI counsel requests time
Meanwhile, PTI counsel Babar Awan requested the court to review the party's separate petition related to dissident lawmakers. "The petition has nothing to do with memogate," he said, referring to the "threat letter" allegedly containing details of a foreign conspiracy to oust former premier Khan.
"The gate will have to be closed now," Justice Mandokhail remarked.
Awan replied that the court previously had a chance to do that but it was wasted.
Justice Bandial rejected the PTI counsel's request.
Continuing his arguments, Awan said that it had been a week that the country was functioning without a federal cabinet. "For the past eight days, we have not had a government.
"There's no attorney general or law minister," Awan said. "Who will argue on behalf of the government?"
CJP Bandial asked Awan if he would endorse the attorney general's arguments to which Awan replied that he would not support them "at any cost".
"Khalid Javed Khan had played tricks during his arguments," he said, requesting the court to grant him time till tomorrow to present his arguments.
'More honourable to resign if voting for opp party'
Justice Bandial observed that the reference was submitted by the president, not the PTI government and the court would hear it at any cost. "The court will also give its opinion on Article 63-A."
Subsequently, Balochistan National Party (Mengal) lawyer Mustafa Ahad began his arguments.
He argued that the president had asked the court to rewrite the Constitution in the reference. "But Article 63-A is completely clear."
"Would it be a crime to disagree with the party's policy on a constitutional amendment that would reduce judicial powers?" Ahad asked.
Here, Justice Akhtar clarified that voting on constitutional amendments and for an opposition party were two separate things.
"It is more honourable to resign if you (lawmakers) want to vote for the opposition party," he observed.
Ahad contended that a resignation could not be the only solution, adding that confining a lawmaker to follow the party leadership was equivalent to slavery.
"By saying so, you are denying parliamentary democracy," Justice Akhtar said. "If you disagree with the party policy, leave [the party]. You can come back by independently contesting the by-election."
Justice Ahsan also observed that those declared dissidents by the Constitution cannot be deemed credible.
Justice Mandokhail observed that not voting against the party policy would make Article 95 ineffective.
However, Justice Akhtar asked how Articles 63-A and 95 could make each other ineffective. "There is a need to strike a balance between Article 95 and Article 63-A," he observed.
"Do you want the court to declare that every member has the right to vote independently on the no-confidence motion?" Justice Akhtar asked and then said that Articles 62 and 63 could only be read together.
The BNP lawyer also criticised what happened during the Punjab Assembly session on Saturday when members of the treasury benches attacked Deputy Speaker Sardar Dost Muhammad Mazari. During a face-off between PTI and PML-N MPAs, PML-Q leader Chaudhry Parvez Elahi was injured as well.
PTI not serious: CJP
Meanwhile, Awan, while referring to the Senate elections last year, said that two party members had approached the Election Commission of Pakistan (ECP) with videos. He did not give further details.
Awan said that former finance minister Hafeez Shaikh lost the Senate election because of horse-trading and the sale of votes. "Fair and transparent elections are the responsibility of ECP," he argued, adding that even during the elections for the Senate chairman, PTI had submitted a request to the ECP.
The CJP, however, said that Awan's comments showed that his party was not serious.
"The SC has decided its parameters regarding suo motu cases," Justice Bandial said, adding that the court was disappointed PTI did not follow the apex court's rules in its request to the ECP.
Meanwhile, Justice Mandokhail said that the reference showed that there was a flaw not in the Constitution but in "ourselves".
During the hearing, the BNP lawyer argued that the court was being told to interfere in political matters. He also claimed that a "campaign" was being run against the courts.
Chief Justice Bandial observed that the head of the political party had the power to take action against dissident lawmakers.
"It is possible that the party chief will not do anything," he observed. "It is also possible that the defectors justify their deed."
Subsequently, the CJP adjourned the hearing till 1pm tomorrow.
'Courts must learn to stay away from politics'
Commenting on the chief justice's remarks, former information minister Fawad Chaudhry said the court needed to "rethink" its stance.
"No where in the world courts decide political questions and policy, courts in Pak must learn to stay away from politics, midnight courts will not get respect anyways," he tweeted.
Presidential reference on Article 63-A
Before its ouster, the PTI government had filed a presidential reference for the interpretation of Article 63-A, asking the top court about the "legal status of the vote of party members when they are clearly involved in horse-trading and change their loyalties in exchange for money".
The presidential reference was filed under Article 186 which is related to the advisory jurisdiction of the SC.
In the reference, President Dr Arif Alvi also asked the apex court whether a member who "engages in constitutionally prohibited and morally reprehensible act of defection" could claim the right to have his vote counted and given equal weightage or if there was a constitutional restriction to exclude such "tainted" votes.
He also asked the court to elaborate whether a parliamentarian, who had been declared to have committed defection, would be disqualified for life. It cautioned that unless horse-trading is eliminated, "a truly democratic polity shall forever remain an unfilled distant dream and ambition".
"Owing to the weak interpretation of Article 63-A entailing no prolonged disqualification, such members first enrich themselves and then come back to remain available to the highest bidder in the next round perpetuating this cancer."
The reference had been filed at a time when the then-opposition
claimed the support of several dissident PTI lawmakers ahead of voting on the no-confidence resolution against then-prime minister Khan.
Article 63-A
According to Article 63-A of the Constitution, a parliamentarian can be disqualified on grounds of defection if he "votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, in relation to election of the prime minister or chief minister; or a vote of confidence or a vote of no-confidence; or a money bill or a Constitution (amendment) bill".
The article says that the party head has to declare in writing that the MNA concerned has defected but before making the declaration, the party head will "provide such member with an opportunity to show cause as to why such declaration may not be made against him".
After giving the member a chance to explain their reasons, the party head will forward the declaration to the speaker, who will forward it to the chief election commissioner (CEC). The CEC will then have 30 days to confirm the declaration. If confirmed by the CEC, the member "shall cease to be a member of the House and his seat shall become vacant".
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