SC forms larger bench on presidential reference seeking opinion on Article 63-A

[ghazi52]

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SC forms larger bench on presidential reference seeking opinion on Article 63-A...........​

Haseeb Bhatti....
March 21, 2022 .....


The Supreme Court formed on Monday a five-member larger bench on a presidential reference seeking its opinion on Article 63-A of the Constitution, which deals with the disqualification of parliamentarians over defection.

Names of the judges who will constitute the bench are yet to be finalised.

The reference was submitted by Attorney General of Pakistan (AGP) Khalid Jawed Khan earlier today.

A two-judge bench, comprising Chief Justice of Pakistan Umar Ata Bandial and Justice Munib Akhtar, took up the reference along with a plea filed by the Supreme Court Bar Association (SCBA) seeking the top court's intervention to prevent "anarchy" ahead of the no-trust vote.

At the hearing, the court said a political party that wanted to become a respondent in the reference may file an application.
The court adjourned the hearing till March 24.

The reference​

The reference, a copy of which is available with Dawn.com, presents two interpretations of Article 63-A and requests the court to advise which of them should be followed.

According to the first interpretation, "khiyanat (dishonesty) by way of defections warrants no pre-emptive action save de-seating the member as per the prescribed procedure with no further restriction or curbs from seeking election afresh."

While the second interpretation "visualises this provision as prophylactic, enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralising the effects of vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct."

The development comes days after several PTI lawmakers, who had been 'in hiding' at the Sindh House in Islamabad, revealed themselves — proving that the opposition's claims of having "won over" members of the ruling coalition were indeed true.

Prime Minister Imran Khan and some cabinet ministers had earlier accused the opposition of indulging in horse-trading ahead of the crucial vote on the no-confidence resolution, disclosing that the capital's Sindh House had become a centre for buying and purchasing members.

But while government members continued to claim that these dissidents had "sold their souls for money", a number of TV channels that sent their teams into Sindh House to verify the claims were faced with nearly a dozen PTI members, who claimed that they had developed differences with the Imran Khan-led government and were going to vote in "accordance with their conscience".

Subsequently, the government had decided to file a presidential reference for the interpretation of Article 63-A with Information Minister Fawad Chaudhry saying the top court would be asked 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.

"What other measures and steps can be undertaken within the existing constitutional and legal framework to curb, deter and eradicate the cancerous practice of defection, floor crossing and vote-buying?" the reference further asks.

"As happened on many occasions in past, the stage is yet again set for switching of political loyalties for all sorts of illegal and mala fide considerations including vote-buying which by its very nature rarely leave admissible or traceable evidence," the reference states.

It adds that some of the "presently defecting [MNAs] have even publicly admitted to defection in interviews to the media with evident pride and further commitment to stay engaged in this immoral trade".

It cautions 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 SCBA petition​

The Supreme Court had last week taken up a petition moved by the Supreme Court Bar Association — an apex legal forum — instituted to seek a restraining order against the government's "intentions" of preventing the parliamentarians from taking part in the no-trust motion against Prime Minister Imran Khan.

The petition had also referred to the government and opposition's plans of holding rallies simultaneously in Islamabad and feared that this may result in an "anarchic situation" ahead of the no-trust vote.

During the hearing, the attorney general apprised the apex court that the federal government was filing a reference under Article 186 of the Constitution, seeking delineation of the scope and meaning of certain provisions contained in Article 63-A of the Constitution.

The CJP, however, observed that the court would take up the matter only when it came before the court, but regretted that whatever happened on Friday — referring to the attack on Sindh House — was "beyond the right of freedom of expression and lawful protest".

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".

The government has already indicated that it will use Article 63-A to "crush" the no-confidence motion against PM Imran.

Last week, Adviser to Prime Minister on Parliamentary Affairs Dr Babar Awan had said that the intent of Article 63-A of the Constitution was to not allow lawmakers, who got the public's votes and were elected in the name of the party leadership, to cross floor. "We will crush the no-confidence motion through the Constitution and the law," he had claimed.

SC forms larger bench on presidential reference seeking opinion on Article 63-A

Next hearing to be held on Mar 24; political parties that want to become respondents in reference asked to file applications.

www.dawn.com

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[PakSarZameen47]

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SC forms larger bench on presidential reference seeking opinion on Article 63-A...........​

Haseeb Bhatti....
March 21, 2022 .....


The Supreme Court formed on Monday a five-member larger bench on a presidential reference seeking its opinion on Article 63-A of the Constitution, which deals with the disqualification of parliamentarians over defection.

Names of the judges who will constitute the bench are yet to be finalised.

The reference was submitted by Attorney General of Pakistan (AGP) Khalid Jawed Khan earlier today.

A two-judge bench, comprising Chief Justice of Pakistan Umar Ata Bandial and Justice Munib Akhtar, took up the reference along with a plea filed by the Supreme Court Bar Association (SCBA) seeking the top court's intervention to prevent "anarchy" ahead of the no-trust vote.

At the hearing, the court said a political party that wanted to become a respondent in the reference may file an application.
The court adjourned the hearing till March 24.

The reference​

The reference, a copy of which is available with Dawn.com, presents two interpretations of Article 63-A and requests the court to advise which of them should be followed.

According to the first interpretation, "khiyanat (dishonesty) by way of defections warrants no pre-emptive action save de-seating the member as per the prescribed procedure with no further restriction or curbs from seeking election afresh."

While the second interpretation "visualises this provision as prophylactic, enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralising the effects of vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct."

The development comes days after several PTI lawmakers, who had been 'in hiding' at the Sindh House in Islamabad, revealed themselves — proving that the opposition's claims of having "won over" members of the ruling coalition were indeed true.

Prime Minister Imran Khan and some cabinet ministers had earlier accused the opposition of indulging in horse-trading ahead of the crucial vote on the no-confidence resolution, disclosing that the capital's Sindh House had become a centre for buying and purchasing members.

But while government members continued to claim that these dissidents had "sold their souls for money", a number of TV channels that sent their teams into Sindh House to verify the claims were faced with nearly a dozen PTI members, who claimed that they had developed differences with the Imran Khan-led government and were going to vote in "accordance with their conscience".

Subsequently, the government had decided to file a presidential reference for the interpretation of Article 63-A with Information Minister Fawad Chaudhry saying the top court would be asked 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.

"What other measures and steps can be undertaken within the existing constitutional and legal framework to curb, deter and eradicate the cancerous practice of defection, floor crossing and vote-buying?" the reference further asks.

"As happened on many occasions in past, the stage is yet again set for switching of political loyalties for all sorts of illegal and mala fide considerations including vote-buying which by its very nature rarely leave admissible or traceable evidence," the reference states.

It adds that some of the "presently defecting [MNAs] have even publicly admitted to defection in interviews to the media with evident pride and further commitment to stay engaged in this immoral trade".

It cautions 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 SCBA petition​

The Supreme Court had last week taken up a petition moved by the Supreme Court Bar Association — an apex legal forum — instituted to seek a restraining order against the government's "intentions" of preventing the parliamentarians from taking part in the no-trust motion against Prime Minister Imran Khan.

The petition had also referred to the government and opposition's plans of holding rallies simultaneously in Islamabad and feared that this may result in an "anarchic situation" ahead of the no-trust vote.

During the hearing, the attorney general apprised the apex court that the federal government was filing a reference under Article 186 of the Constitution, seeking delineation of the scope and meaning of certain provisions contained in Article 63-A of the Constitution.

The CJP, however, observed that the court would take up the matter only when it came before the court, but regretted that whatever happened on Friday — referring to the attack on Sindh House — was "beyond the right of freedom of expression and lawful protest".

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".

The government has already indicated that it will use Article 63-A to "crush" the no-confidence motion against PM Imran.

Last week, Adviser to Prime Minister on Parliamentary Affairs Dr Babar Awan had said that the intent of Article 63-A of the Constitution was to not allow lawmakers, who got the public's votes and were elected in the name of the party leadership, to cross floor. "We will crush the no-confidence motion through the Constitution and the law," he had claimed.

SC forms larger bench on presidential reference seeking opinion on Article 63-A

Next hearing to be held on Mar 24; political parties that want to become respondents in reference asked to file applications.

www.dawn.com

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Please could you translate in simple terms

 

[ghazi52]

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Justice Isa argues the two matters cannot be heard simultaneously​

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Justice Isa’s objection​

Senior puisine judge Justice Qazi Faez Isa on Tuesday wrote a three-page letter to the CJP, highlighting that the SCBA petition under Article 184(3) of the Constitution cannot be heard simultaneously with the reference under Article 186 in which the president had sought an opinion on interpretation of Article 63A.

The letter stated that the original jurisdiction under Article 184(3) of the Constitution and advisory jurisdiction under Article 186 were altogether different and thus could not be heard simultaneously.

Moreover, it said, the composition of the five-judge bench consisted of judges who were 4th, 8th and 13th in seniority list of the court. This has been done by discarding the good practice of structuring the CJP’s discretion by predecessors of constituting benches consisting of senior most judges when cases involved important constitutional questions.

Therefore, there is no discernible criterion in the constitution of the present bench, the letter regretted, adding that this was most troubling and gave rise to unnecessary and avoidable misgivings.

The Constitution recognises the most senior judge of the apex court and with seniority comes responsibility, which must not be shirked, the letter said, adding that the senior most judge also ensures continuity of the Supreme Court as an institution, but this practice has been discarded, which may have adverse consequence for the institution.

Published in Dawn, March 23rd, 2022
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[ghazi52]

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"63(A) says that whether you are satisfied or not, you have to stand with the party," CJP Umar Ata Bandial says​

By Maryam Nawaz
March 24, 2022

Supreme Court of Pakistan. — Supreme Court website

ISLAMABAD: Justice Munib Akhtar of the Supreme Court Thursday said that every lawmaker has to follow their respective party's policy — on parliamentary matters.

"...when a politician joins a party, they are bound by its mandate. The lawmakers have to follow the party's policies. Period," Justice Akhtar said, as the apex court heard two separate pleas.

A five-member bench, headed by Chief Justice Umar Ata Bandial, is hearing a presidential reference seeking interpretation of Article 63(A) and a plea filed by Supreme Court Bar Association (SCBA) against public gatherings of the Opposition and the government in the federal capital —ahead of the no-confidence motion against Prime Minister Imran Khan.

The five-member larger bench, apart from the CJP, includes Justice Muneeb Akhtar, Justice Aijazul Ahsan, Justice Mazhar Alam, and Justice Jamal Khan Mandokhel.

"While voting [in the parliament], the party's opinion matters more than an individual's. The law to ascertain the [penalty] for defection is present since day one," Justice Akhtar said.

During the hearing, the CJP said Article 63(A) — which deals with the disqualification of lawmakers over defection from the parliamentary party — was a law that disciplined MPs.
"63(A) says that whether you are satisfied or not, you have to stand with the party," the chief justice said.

At this, Attorney General of Pakistan Khalid Jawed Khan said the country's political system stands on Article 63 and Article 95 — whose violation could collapse the entire system.

Following the attorney general's response, the bench members flooded the court with questions.
Moving on, the AGP said according to a judgment of the apex court on Article 17(2), the vote on an individual has no substance — it is considered collective and part of the party.
At this, the chief justice said the court was still deliberating over the arguments being presented to it.

"All of these [arguments] are of extreme importance," remarked the top judge.
Justice Mandokhel, contrary to Justice Akhtar, said voting is an individual right and the parliamentarian is not bound by the party. Meanwhile, Justice Ahsan asked whether a lawmaker could vote outside party lines.

At this, Justice Akhtar said political parties are an institution and violating their discipline could weaken or even destroy them.
Justice Mandokhel asked the AGP whether a party member could leave a party if it takes wrong decisions. AGP Khan said that if a member wants to part ways with the party then they should submit their written resignation.
At this, CJP Bandial said: "This means that if a person defects from their party, they will have to face consequences."
While Justice Ahsan observed that if such a thing happens, then a new pandora's box will open for the government as it already has a thin majority in the National Assembly.
Justice Akhtar reiterated that if every member starts deciding their own policy, then the political party would turn from an institution to a mob.
CJP then asked the AGP whether floor-crossing was allowed in other democratic countries or not. Responding to the chief justice, AGP Khan said: "In other countries, prices go down before Christmas. In our country, prices double during Ramadan.
Moreover, Justice Mandokhel asked the AGP whether he wanted the party leader to become the "king"?
"We neither want them to be king nor do we want them to become turncoats," the AGP responded.
The CJP then adjourned the proceedings till tomorrow and issued notices to the SCBA, PTI's allies, and all the political parties for assisting the apex court during the proceedings.
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[SuvarnaTeja]

Please could you translate in simple terms

votes of MNAs who defected will not be counted. They will be considered invalid.

 

[ghazi52]

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Members contesting on party symbol bound by its discipline: Justice Ahsan​

Haseeb Bhatti
March 25, 2022

Supreme Court Justice Ijazul Ahsan observed on Friday that during elections, voters stamped on a party's electoral symbol which meant that lawmakers contesting on a party's electoral symbol were bound by party discipline.

He made these remarks during the hearing of a presidential reference seeking the Supreme Court's opinion on Article 63-A – which deals with a parliamentarian's disqualification for defection – of the Constitution.

A five-member bench, comprising Chief Justice Umar Ata Bandial, Justice Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail heard the petition.

Earlier in the hearing, Justice Mandokhail asked if any member [of the National Assembly] could express no-confidence against the prime minister.

At this, Attorney General of Pakistan (AGP) Khalid Jawed Khan said that a party ticket is a certificate that bears the electoral symbol. He said MNAs elected on reserved seats for women and minorities do not receive votes from the people, and instead they are nominated by their parties. Some of the MNAs elected on reserved seats were also present at the Sindh House, he said, referring to dissident PTI lawmakers.

There is a difference in the oath of the prime minister and an MNA, he pointed out.
He said that in the subcontinent, political parties such as the Congress and Pakistan Muslim League were formed in the names of great leaders and still continue to exist.

In a parliamentary democracy, the AGP said, parliamentary sessions are held, but MNAs are not supposed to be "rubber stamps". If they don't agree with the party's decision, they may resign, he suggested, adding that differences with the party didn't mean going against the government.

Justice Mandokhail remarked that the Constitution gave everyone the right to free expression of their views. "Should [an MNA] be disqualified for expressing their views?" he asked.

'Reference may possibly be sent back'​

Chief Justice Bandial, however, observed that the Holy Quran mandated severe punishment for dishonesty. "A person who breaks trust is called a traitor," he remarked.
"But does a member declare to be bound by the party?" he questioned, and then asked the AGP when should an MNA be declared a defector. He added that the Constitution did not specify anywhere that MNAs were required to be loyal to their parties.

"Article 62(1)(F) talks about qualification, not disqualification," Justice Bandial said.
Justice Munib Akhtar, too, asked whether Article 62(1)(F) would be applied upon violation of Article 63-A, noting that Article 63-A talked about vacating seat.

Here, Justice Mandokhail inquired if an MNA had ever resigned after casting their vote. AGP Khan replied that it had happened in India and the Supreme Court had declared the member a defector. "Nobody can be encouraged to deviate from the party," he added.

Justice Mandokhel said the president could have called a meeting of political parties with representation in Parliament and discuss the issue with them before filing a presidential reference.
Justice Ahsan, here, remarked that the president had asked for the interpretation of the Constitution and the court could not drift away from that. "It is possible that the reference may be sent back," he added.

Discussion on Article 63-A​

Meanwhile, Justice Bandial said that the length of disqualification in Article 63-A can be included through the legislation.
"If the vote is not counted, there's no point in boarding another ship," Justice Munib pointed out.
Justice Mandokhail, on the other hand, asked if a member had the right to expression under Article 63-A. He, however, observed, that if an MNA went against the party, he had to face consequences.
AGP Khan, here, contended that under Article 63-A, no one had been disqualified so far, and that it was not necessary to prove that money had been accepted for voting against party line.

Islamabad police told to cooperate with JUI-F​

During the proceedings, the advocate general of Islamabad said that the Jamiat Ulema-e-Islam (JUI-F) wanted to block the Kashmir Highway to which Kamran Murtaza, JUI-F's counsel, said that they were ready to cooperate with the police.
"We don't understand why the administration [of Islamabad] is scared," Murtaza said.

To this, the CJP said democratic values should be followed and instructed the Islamabad attorney general to cooperate with the party.
The court, subsequently, adjourned the hearing till Monday after the AGP promised to complete his arguments before 2pm on March 28.

On Monday (March 21), a two-member bench of the apex court comprising CJP Bandial and Justice Akhtar took up the presidential reference and declared that a larger bench would hear the case.

The reference​

AGP Khalid Jawed Khan had submitted the reference seeking the SC's opinion on Article 63-A of the Constitution on March 21.

The reference, a copy of which is available with Dawn.com, presents two interpretations of Article 63-A and requests the court to advise which of them should be followed.

According to the first interpretation, "khiyanat (dishonesty) by way of defections warrants no pre-emptive action save de-seating the member as per the prescribed procedure with no further restriction or curbs from seeking election afresh."

While the second interpretation "visualises this provision as prophylactic, enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralising the effects of vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct."

The development came days after several PTI lawmakers, who had been 'in hiding' at the Sindh House in Islamabad, revealed themselves — proving that the opposition's claims of having "won over" members of the ruling coalition were indeed true.
Prime Minister Imran Khan and some cabinet ministers had earlier accused the opposition of indulging in horse-trading ahead of the crucial vote on the no-confidence resolution, disclosing that the capital's Sindh House had become a centre for buying and purchasing members.

Subsequently, the government had decided to file a presidential reference for the interpretation of Article 63-A with Information Minister Fawad Chaudhry saying the top court would be asked 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 of the Constitution, which is related to the advisory jurisdiction of the SC.

In the reference, President Dr Arif Alvi 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.

"What other measures and steps can be undertaken within the existing constitutional and legal framework to curb, deter and eradicate the cancerous practice of defection, floor crossing and vote-buying?" the reference further asks.
It cautions 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."

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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[ghazi52]

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Article 63-A: SC says only interprets Constitution, doesn't fill in blanks​

Justice Ijazul Ahsan says it's possible the court will send the reference back

Hasnaat Malik
March 25, 2022

A file photo of the Supreme Court of Pakistan. PHOTO: EXPRESS

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ISLAMABAD: While hearing the presidential reference seeking interpretation of Article 63 of the Constitution on Friday, the Supreme Court said it could not “fill in the blanks” as its job was only to “interpret” the Constitution.

These remarks were made by a five-member bench headed by Chief Justice Umar Ata Bandial. Other bench members are Justice Ijazul Ahsan, Justice Mazhar Alam, Justice Muneeb Akhtar, and Justice Jamal Mandokhel.

Justice Ijazul Ahsan said the top court does not deviate from its task of interpretation which was sought by the president, Arif Alvi. He said it was also possible that the court may send the reference back.

During the hearing, CJ Bandial said the court could not fill the blanks and asked the government why it did not make a law in order to determine the length of disqualification of lawmakers for violating Article 63-A.

Justice Bandial asked Attorney General Khalid Jawed Khan that the federal government had the power to make the law so why was it not done. “Nothing related to disqualification over defection is mentioned in Election Act 2017,” he said while also referring to Article 63-P.

CJ Bandial said the apex court could not go beyond the Constitution. Regarding the AGP’s contention about the applicability of lifetime disqualification under Article 62(1)(f) of the Constitution on defected lawmakers, the CJP said that the 18th Amendment clarified that declaration from a court of law was required to disqualify a lawmaker for life.

The judge then asked the AGP whether the Election Commission of Pakistan (ECP) was a court of law.

However, Justice Ijazul Ahsan responded that whenever the apex court upholds any lower court’s decision, then it comes under the purview of the court declaration.

During the hearing, CJ Bandial said the Constitution was not clear about the loyalties of lawmakers to their respective political parties. “Does a member declare that they will remain loyal to the party in the membership form,” Justice Ahsan asked. “If this is specifically mentioned in the form then non-compliance would be tantamount to dishonesty,” he added.
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[ghazi52]

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Lawmakers switching loyalties to change govt is a joke: Justice Ahsan​

Haseeb Bhatti
March 28, 2022

Supreme Court Justice Ijazul Ahsan.


Supreme Court Justice Ijazul Ahsan observed on Monday that "a few lawmakers switching loyalties to change a government at any time is a joke".

He made the observation during the hearing on a presidential reference seeking the top court's opinion on the interpretation of Article 63-A, which is related to the disqualification of parliamentarians over defection.

A five-member larger bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, and comprising Justice Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, is hearing the petition. The reference was submitted by the Attorney General of Pakistan (AGP) Khalid Jawed Khan on March 21.

During the hearing today, the chief justice observed that even if a member was de-seated and the no-confidence motion against the prime minister was unsuccessful, the ruling party "still loses the majority".

Attorney General of Pakistan (AGP) Khalid Jawed Khan replied that there was a separate procedure if that was the case.

Justice Akhtar observed that the article related to lifetime disqualification was applicable when a member hid information in his nomination papers, questioning how a lawmaker could be disqualified for life without misconduct proceedings being initiated against him.

Earlier during the hearing, AGP Khan referred to a Supreme Court verdict from 2018 in which the SC had asked all candidates to submit an affidavit along with nomination papers.

The court had declared that nomination papers without the affidavit would be incomplete, he said, adding: "In the law, there was no requirement of an affidavit. It was submitted on orders of the court."

The court had said in the verdict that the move was aimed at ensuring transparency in the election process, the AGP informed the bench.

Justice Mandokhail asked the attorney general whether he believed there was something "missing" in Article 63-A, to which he replied that the article in question could not be read alone.
The chief justice observed that the Supreme Court's 2018 verdict — earlier mentioned by the attorney general — talked about the credibility and sanctity of the elections.

"A five-member Supreme Court bench had referred to Articles 62 and 63 to maintain transparency," the AGP said, reiterating that members of political parties were bound by party discipline.

'How can Article 63-A be linked to life disqualification?'​

At this, Justice Ahsan observed that Article 63-A was related to de-seating, questioning how it could be linked with lifetime disqualification.

Different forums were available to take action against those who changed loyalties, he noted, observing that linking Article 63-A to lifetime disqualification was "merely a hypothesis".

For his part, the AGP argued that the lifetime disqualification clause was applicable where malafide intention was involved. Justice Ahsan remarked that the question was what dishonesty was committed and against whom.

"There are three players in the entire process. The voter, the party and the member who is elected. The member who wins on the party's ticket promises to follow the party's mandate," the AGP said.

Here, Justice Mandokhail questioned whether there was a punishment for resigning, to which the AGP responded that the "problem was no one was resigning".

The judge cautioned the attorney general to limit his arguments to the presidential reference the court was hearing. "Don't tangle the Supreme Court in politics," he warned.

"Is de-seating under Article 63-A not enough?" he asked.

The chief justice remarked that members "will have to face the consequences of violating the party policy". He observed that Article 63-A states that the parliamentary membership of the MNA will be terminated.

"You want to determine the period of disqualification," Justice Bandial said. Disqualification under Article 62 (i)(f) required a verdict, he observed, questioning whether an MNA could be disqualified for up to five years under Article 63-A.

Justice Ahsan, however, asked how Articles 63-A and 62 (i)(f) could be linked. "Isn't it necessary to prove taking bribes on a forum?" he inquired and then observed that Article 62 (i)(f) iswas applicable on taking bribes.

AGP Khan argued that violation of Article 63-A was "legally mala fide".

The chief justice asked the AGP whether a lawmaker could be disqualified for three years or five years under Article 63-A or if it was temporary. "Are you seeking lifetime disqualification for political dishonesty?"

Meanwhile, Justice Akhtar observed that both the constitutional provision of lifetime disqualification and Article 63 were different.

He remarked that lifetime disqualification is related to false information and statements in nomination papers. "Action against a dissident member is a matter for after election."

Justice Akhtar pointed out that the verdict the AGP was referring to was related to pre-election matters, asking how it could be applied post-election.

Election laws could not be above the Constitution, AGP Khan argued.

"The Election Commission of Pakistan (ECP) is present to take action against a dissident member," Justice Mandokhail noted.

He further said the ECP should be allowed to decide the matter once the party's head submitted a declaration. "When the procedure had been clarified in the law, what do you want? Perhaps some people's conscience may truly have been awakened. If the Election Commission's decision is [challenged] in the Supreme Court, then we will see.

Subsequently, Justice Miankhel questioned how the length of disqualification would be decided.
Meanwhile, Justice Akhtar said the matter was "very complex" and the entire constitutional framework would have to be evaluated.

The chief justice questioned how the prime minister could take a vote of confidence from the parliament if 15 to 20 lawmakers were de-seated. "Can the prime minister stay even with a [reduced] majority?"

The attorney general replied that the president could direct the prime minister to take a vote of confidence.

Justice Mandokhail said if the demand for action against dissident lawmakers was not made by all political parties, then the matter should be resolved in parliament.

,..,.,,.,.,.,.,.

 

[ghazi52]

,.,-,
The Supreme Court on Tuesday said that Article 63-A of the Constitution did not mention lifetime disqualification as it only referred to temporary disqualification (de-seating) in case of violation.

During the hearing on the presidential reference, Attorney General Khalid Jawed Khan said defection was no ordinary political activity and added that the Constitution mentioned the tenure of an assembly, not of lawmakers.

According to the AGP, lawmakers’ membership ends in case of the dissolution of the assembly.

He said the purpose of Article 63-A will be fulfilled with lifetime disqualification and the law would not serve its purpose by de-seating lawmakers till the completion of the assembly’s tenure. The government’s lawyer said that in case of a declaration, Article 62(1)(f) will be applied to the dissenting lawmaker.

At this, Justice Jamal Khan Mandokhail asked whether disagreement meant dissent as per the AGP, to which Khan replied in the negative.

Justice Mandokhail said Article 63-A referred to de-seating, not disqualification. He added that there was no need for further discussion when there was no mention of disqualification.

“Will the Election Commission of Pakistan conduct an inquiry about defection?”

Justice Ijazul Ahsan said Article 63-A would not need evidence as defection was not a mistake but a deliberate action and further added that the court will have to do a lot of manoeuvring to determine lifetime disqualification.

Justice Muneeb Akhtar, giving his opinion, said that there was no mention of lifelong disqualification in Article 63-A. There were separate court decisions on the application and consequences of Article 62(1)(f).

Justice Mandokhail added that in case of possible defections, the party head was bound to listen to the version of the lawmakers by issuing a show-cause notice.
[;';';';';

 

[ghazi52]

,.,.,.,.

Article 63-A clearly states defection from party to be unconstitutional: CJP​

The Frontier Post

ISLAMABAD (APP): Chief Justice of Pakistan (CJP) Umar Ata Bandial on Wednesday said Article 63-A clearly stated that the defection from a party would be unconstitutional.

The CJP made these remarks while heading a five-member larger SC bench, which heard the presidential reference seeking the court’s opinion on Article 63-A of the Constitution and a petition filed by the Supreme Court Bar Association (SCBA) against public gatherings of the opposition and the government in the Federal Capital ahead of the no-confidence motion.

The bench comprised Justice Ijaz Ul Ahsan, Justice Muneeb Akhtar, Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhel.

During the course of proceedings, Makhdoom Ali Khan, counsel for the Pakistan Muslim League-Nawaz, said the reference was non-maintainable. The court always heard a presidential reference out of respect for the office, but it was not legally bound to do so. He said the question asked in the reference was political and not legal. It was not appropriate to seek answer of every question from the court. The president had asked the court how to prevent the horse trading, and did not seek its opinion about the procedure to halt the menace, he added. The reference, he said, also cited that votes trading was done in the Senate election.

Upon this, the CJP, while addressing the counsel, said that it appeared from his arguments that defection from a party was not bad. The counsel responded that it was not his contention.

Justice Ijaz said according to one viewpoint, defection from a party was part of the democracy, while another opinion stated the deliberate deviation from the party line was betrayal. According to Article 63-A, he said, defection from the party was a wrongful act.

The counsel said according to the president, malpractices and misdeeds were carried out in the Senate election. Both the president and the prime minister were aware about the horse trading, but they did not take any action, he added. Justice Muneeb Akhtar said an assembly member was supposed to cast his / her vote as a voter in Senate election, but casting a vote for money in the Senate election was a crime. Justice Jamal Khan said the party chief could give a declaration with regard to defection as per Article 63-A.

There was no reference about disqualification without hearing the member, he added. Makhdoom Ali Khan argued that the consequences of Article 63-A could not go beyond what was in the Constitution. He said he was agreed with the observation of Justice Ijaz ul Ahsan.

Upon this, the chief justice asked horse trading had happened earlier and what action was taken in that regard. The defectors used to be taken back in the parties, it was likely that the party pardoned to the member who had voted against the party line.

The court, he said, was for enforcement of the Constitution and to make its articles effective and it had to intervene if the system was weak. The counsel said it was not necessary that defection from the party was based on immorality and corruption, as it might be for a noble cause.

He said a defecting member would submit reply in response to a show cause notice issued to him / her by the party’s chief. The show cause would be withdrawn, if the party head were satisfied over the reply. He said the president had filed the reference after the no-confidence motion was submitted (in the National Assembly). According to the Constitution, the NA session was required to be summoned within 14 days of the submission of the no-trust motion, he added.

Makhdoom Ali Khan said he was only describing facts, and not talking politics. The judges should not be influenced by the outside matters, he added.

Addressing the counsel, the CJP asked whether he thought that the court proceedings had any influence over political matters. Whether he wanted that the court should not use its advisory powers in the present circumstances, he added. Justice Jamal said Article 63-A would be invoked after casting of the vote by a member (against the party line). He asked how the president knew that the government party members were going to defect. Makhdoom Ali Khan said the Pakistan Tehreek-e-Insaf counsel could reply that question.

Subsequently, the case was adjourned till Monday.
,.,.,.,..,

 

[ghazi52]

,.,.,.,.,

Article 63-A: If defection is such a big crime, why wasn't voting against PM banned, asks SC judge​

Haseeb Bhatti
April 19, 2022

Supreme Court Justice Jamal Khan Mandokhail.

Justice Jamal Khan Mandokhail, who is a part of a five-member Supreme Court bench hearing a presidential reference seeking its interpretation of Article 63-A, on Tuesday wondered why voting [on a no-confidence motion] against the prime minister was not banned entirely if the defection of lawmakers was "such a big crime".

He also asked whether the Election Commission of Pakistan (ECP) could dismiss a reference against defecting lawmakers, observing that there would be a misuse of power where there was an excess of authority.

The five-member bench hearing the presidential reference — filed by the PTI government before its ouster — is headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprises Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Mandokhail.

During the hearing today, PPP's lawyer Farooq H Naek argued that the 17th constitutional amendment gave the prime minister and party chiefs immense powers. "Even the Supreme Court cannot take action against the prime minister."


Chief Justice Bandial observed that if a no-trust motion was submitted against the premier in the fourth year of his tenure and a reference against defecting legislators was simultaneously filed with the ECP and it then takes a year for them to announce decisions, no action would be possible against those lawmakers as by that time the National Assembly would have completed its tenure.

Naek responded that the ECP was bound to announce its decision on a reference for ineligibility within a stipulated time frame.

At this, Justice Mandokhail interjected that the top court was also bound to decide the case within a specific period of time.

The chief justice remarked that Article 63-A's purpose was to disqualify a defecting lawmaker, to which Naek said the Article in question also did not mean the "hanging" of a defected member.

"No argument has been presented on lifetime disqualification of defectors," the PPP's counsel said.

Justice Ahsan 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 Ahsan 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.

Justice Mandokhail asked Naek whether he was accepting that defection was a crime. "If it is a crime, then why is the vote of a criminal counted?" he questioned.

The chief justice observed that the court had given its verdict in the Senate election case, but no one followed it. "Why is a political party neutral on the defection of lawmakers?" the top judge asked.

He expressed surprise that a person leaving a party was given a position elsewhere.

Justice Ahsan cited an observation of an American judge, saying people in the US would not vote for a person who went against the court orders.

Naek told the bench that the country was heading towards anarchy as "no one is willing to adhere to the court orders".

The CJP remarked that the situation was not bad enough to avoid discussions on a general matter.

The hearing was subsequently adjourned till Wednesday.

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".

 

[Rank]

End result bataoo bhi

 

[ghazi52]

.,.,.,.

Article 63-A: 'Is disloyalty to party not dishonesty?' asks SC judge​

Haseeb Bhatti
April 20, 2022


Supreme Court Justice Ijazul Ahsan questioned on Wednesday whether disloyalty to a political party by a parliamentarian was dishonesty and could lead to his disqualification.

He raised the questions during the hearing of a presidential reference seeking the apex court's interpretation of Article 63-A of the Constitution, which is related to disqualification of lawmakers over defection.

A five-member bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, heard the reference.

"Is disloyalty not dishonesty?" Justice Ahsan asked PPP counsel Farook H Naek who presented his arguments during the hearing today. He further asked whether a lawmaker could be disqualified over "dishonesty".

Naek replied that "disloyalty" was a strong word, adding that it was not mentioned in Article 63-A.

At the start of the hearing today, Naek recalled that Article 58-2(b) — under which elected governments had been sent packing in the past — was abrogated in 1997 through the 13th Amendment but was brought back by military dictator Pervez Musharraf in 2002.

The article was again removed through the 18th Amendment in 2018, he said.

Article 63-A was made a part of the Constitution via the 14th Amendment, he said, adding that it gave broad powers to party heads.

The Election Commission of Pakistan (ECP) did have not have the authority to reject the party head's decision prior to a presidential order amending Article 63-A in 2002 that reduced the powers of party heads, the PPP counsel said.

The 18th Amendment further reduced the powers of party heads and transferred them to the parliamentary leaders of the parties, he said, adding that after Article 63-A was amended, the authority to make the final decision was given to the SC.

"According to the 18th Amendment, the authority to make a decision on a reference related to Article 63-A was given to the ECP." The amendment also bound the ECP to announce a decision within a month, he informed the court.

He contended that the presidential reference seeking the court's opinion was only related to sub-clause 4 of Article 63-A — which states that a parliamentarian would no longer be a member of the house and his seat would become vacant once the ECP confirms the party head's declaration stating his defection.

Justice Ahsan pointed out that Article 62(1)(f) did not specify the length of disqualification but its interpretation was provided by the SC.

Naek responded that lawmakers had not determined the length of disqualification for defecting lawmakers under Article 63-A.

'Ticket holders take oath against deviation'​

Justice Ahsan remarked that ticket holders swear in their nomination papers that they would not deviate from party policy.

Naek said that the rules for punishing a party worker for violating party discipline were underlined in Article 63-A of the Constitution. "Whether it is dishonesty or disloyalty, the consequences of both are underlined in the Constitution," he said.

The PPP's counsel said that a dissident party member would effectively lose his seat.

Justice Munib Akhtar remarked that not abiding by one's oath amounted to "dishonesty", adding that a dissident is elected on a ticket from a particular political party.

"What is cancer? Cancer is when the body's cells begin destroying the body," he commented, adding that deviation from the party had also been called a cancer.

The CJP remarked that in four instances, loyalty had been equated to party policy. He added that during the attorney general's arguments, the court was told that Article 63-A was related to loyalty.

"Loyalty is a basic constitutional principle," the CJP said. "Article 5 states that every party member should be loyal to the state," he said, adding that "disqualification was a minor matter".

The CJP remarked that the basic purpose of Article 63-A was to ensure loyalty to the party. "When a member says he is part of a particular party in his oath, that means he is bound by the party policy."

Naek argued that a party worker was not a "slave" that he would listen to all directives.

Justice Ahsan asked whether government employees would be considered slaves. "All parties have some rules and regulations which must be followed," Justice Ahsan said.

The CJP went on to say that if a person is qualified on the basis of dishonesty, they would also be disqualified from the next election.

"This is not written anywhere in the Constitution," Naek argued. "Show me where it is written and I will leave the rostrum."

Justice Ahsan said that Articles related to the qualification and disqualification of a lawmaker were not a "wall of fire".

Naek said that loyalty only existed within the monarchy, adding that the people should be allowed to decide who to elect.

Justice Ahsan then asked whether Articles 62 and 63 should be removed from the Constitution.

Justice Mandokhail noted that a "big punishment" such as disqualification could not be handed down without a trial. He added that an independent candidate who joins the party after winning does not take an oath swearing allegiance to the party.

Naek argued that no party member takes an oath to obey all the directives of the party chief.

Justice Ahsan remarked that political parties were the backbone of the parliamentary system. "How can the system be run where the backbone is plagued by cancer?" he asked.

Naek said dissident members were de-seated but not disqualified.

The chief justice observed that Article 63-A had been invoked in only one instance since 1998 which meant that it was not taken seriously by party heads.

He also questioned why defecting lawmakers were later welcomed back to the party's folds. "The reason is the flexibility in politics."

The PPP counsel responded that rigidity in politics led to chaos.

Justice Akhtar asked Naek whether a lawmaker who had been de-seated could contest by-elections to which the counsel replied in the affirmative.

"The punishment for someone who deviates is that he is de-seated," Naek added.

Article 63-A step towards 'mature democracy'​

Meanwhile, Advocate General of Sindh Salman Talibuddin said that lawmakers who "sold their votes for money" could be asked to resign, arguing that the court was being "unnecessarily" dragged into politics.

Article 63-A was a step towards mature democracy, he contended. "It says that you (the lawmaker) should go back to the people."

The chief justice remarked that while deciding on a case related to Article 63-A, the court could ask several questions: Has a vote been cast against party lines? Has the lawmaker deviated from party policies? If a vote was cast against party lines, can the court determine anything?

Subsequently, the hearing was adjourned till tomorrow.

Presidential reference​

Ahead of 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. Alvi 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 Imran Khan. Eventually, the dissident lawmakers votes were not needed in Khan's removal, as the opposition managed to stitch together support from government-allied political parties.

However, the role of dissident lawmakers was crucial in the election of opposition candidate Hamza Shehbaz as the Punjab chief minister who bagged 197 votes, including from 24 PTI dissidents.

 

[ghazi52]

,.,.,.

Resignation honourable way out for dissident lawmakers, observes SC judge​

Haseeb Bhatti
April 22, 2022


Supreme Court Justice Munib Akhtar, who is part of a five-member bench hearing a presidential reference seeking the SC's interpretation of Article 63-A of the Constitution, observed on Friday that the "honourable way out for dissident lawmakers is to resign and go home".

He was responding to PML-N counsel Makhdoom Ali Khan's argument that disloyalty to the party was different from disloyalty to the state.

During a hearing earlier this week, Justice Akhtar had likened defection in parliamentary democracy to the devastation wrought by cancer on a human body.

The five-member bench of the SC hearing the presidential reference, which is related to disqualification of lawmakers over defection, is headed by Chief Justice of Pakistan Umar Ata Bandial and comprises Justice Akhtar, Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail.

When the hearing resumed today, PTI counsel Ali Zafar continued his arguments, saying 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 Ahsan 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.

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.

Meanwhile, Justice Miankhel observed that the party head could only give a declaration after the vote had been cast, adding that the party chief could inform the speaker even while polling was going on.

Justice Mandokhail pointed out that after the vote had been cast, the party chief would first issue a show cause notice and seek the dissident member's reply.

"The party chief may end the show cause after being satisfied with the response received," Justice Mandokhail added.

Justice Ahsan questioned whether the decision regarding defection was taken by the head or the parliamentary party and what the procedure was.

A parliamentary party has a constitution and the majority took the decision, Zafar responded.

'Why can't party deal with the cancer?'​

Justice Mandokhail questioned why political parties could not deal with the "cancer" of defection themselves. "If political parties have a problem, they should treat it."

Addressing the PTI counsel, he said the stance of most parties was different to the PTI's. "Are you expecting that we will leave the majority and agree with you? Only one political party is against dissidents."

Zafar responded that the authority to interpret the Constitution lay with the Supreme Court.

Justice Ahsan observed it was "very clear" that legislation was the parliament's job and interpreting those laws was the court's duty.

"The purpose of Article 63-A's inclusion was to end the cancer of defection," he added.

The bench directed Zafar to submit detailed arguments.

PML-Q lawyer Azhar Siddique endorsed the PTI counsel's arguments, saying Article 63-A was a "protective wall" against a no-trust resolution. Whatever had happened in the recent no-confidence vote that led to the ouster of Imran Khan was against the charter of democracy, he added.

PML-N counsel's argument​

Meanwhile, PML-N counsel Makhdoom Ali Khan argued that the National Assembly's term was five years and a dissident lawmaker could be disqualified only for that length.

He recalled that Imran Khan had submitted a petition in the Supreme Court, seeking a lifetime ban from contesting elections for dissident lawmakers.

The chief justice noted that the question raised in the petition was the same as that in the reference.

"The court has no evidence in front of it as to why the lawmakers became dissidents. There is no proof of bribery or changing of consciences," the PML-N counsel said, arguing that it was not the dissident lawmaker's job to provide reasons for his defection.

The legal fraternity and the public had protested over certain constitutional amendments, he said. "The 7th Constitutional Amendment allowed [the government] to summon the armed forces in aid of civil institutions. The armed forces' actions in helping civil institutions were excluded from judicial jurisdiction."

The chief justice asked whether the apex court's interpretation of the law was limited to the questions asked in the reference to which Khan replied that the SC had been asked its opinion and it could exercise its authority under Article 184(3), which empowers the top court to intervene in matters involved in enforcement of fundamental rights.

The CJP remarked that the country needed to be taken towards "mature democracy" for which legislative discussion was essential.

The PML-N counsel said the PTI chairman had argued in his petition that the votes of dissident lawmakers should not be counted, adding that the reference had been filed to save the former premier from the no-trust vote.

"The court gave a historic decision to restore the Assembly," he added, referring to the SC's decision to set aside the deputy speaker's ruling to dismiss the no-trust resolution against Imran and the subsequent dissolution of the NA by the president.

"We do whatever seems correct in accordance with [our] consciences and the Constitution," the chief justice responded. "We pray that improvement comes in the country because of our decisions."

Subsequently, the hearing was adjourned till after Eidul Fitr.

 

[SEOminati]

There actions are against what they say. For example they'll say "horse trading ik lanat hai" but then they'll announce it's out of our jurisdiction, lol. Horse shit eaters.