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

ISLAMABAD, Mar 21 (Alliance News):The Supreme Court on Monday constituted a five-member larger bench to hear the presidential reference filed by the Federal Government to seek opinion on Article 63-A of the Constitution.

A two-member SC bench comprising Chief Justice of Pakistan Umar Ata Bandial and Justice Muneeb Akhtar heard the reference along with a petition filed by the Supreme Court Bar Association (SCBA) seeking the top court’s intervention to ensure law and order ahead of the no-confidence vote.

Pakistan Muslim League-Nawaz President Shehbaz Sharif, Pakistan Peoples Party Chairman Bilawal Bhutto Zardari and Jamiat Ulema-e-Islam-Fazl chief Maulana Fazlur Rehman were also present in the court room. During the course of proceedings, the counsel for SCBA said the National Assembly speaker had summoned the NA session on March 25 while under Article 95 it had to be convened within 14 days of the submission of the no-trust motion with the Assembly Secretariat.

The CJP observed that the court was not convinced to interfere in the NA’s affairs and it only wanted that no one’s right to vote was affected. Those were the internal matters of assembly and it would be better to fight the battles in that regard inside the assembly, he added. The counsel said under Article 95, the NA speaker had to summon the session within 14 days of the date the no-confidence motion was submitted.

The CJP said the SCBA wanted the legislators to have the choice to vote for whomever they wanted. He asked whether the personal choice of an MNA could differ from that of his party’s policy. The counsel responded that all the MNAs should have the right to vote freely. At this, Justice Muneeb Akhtar inquired about the article under which lawmakers could vote freely.

The counsel replied that the MNAs elected the speaker and other officials of the assembly under Article 91. Justice Muneeb Akhtar remarked how someone could say that it was not thee MNAs’ right to vote. He also asked on which article of the Constitution the SCBA had based its case. The CJP said as it was an internal matter of the assembly, which should better be settled there.

He asked the political parties what did they want the court to do in the matter. The judiciary could only play a mediator’s role in political matters for the betterment of democracy, he remarked. The court stated that party workers could not be brought to the Capital to stop lawmakers from casting their vote on the no-confidence motion in the NA session. There should not be any interference to halt the process of Article 95 of the Constitution, the CJP observed, adding the purpose of SC proceedings to ensure the right of legislators to cast vote.

Attorney General for Pakistan Khalid Jawed Khan gave an undertaking that all state functionaries would act strictly in accordance with the Constitution and the law. Justice Muneeb Akhtar said Article 17 pertained to the formation of political parties, while according to Article 95, the right to vote belonged to political parties.

Under Article 95(2) individual votes had no legal status, he added.
Justice Muneeb said the court had previously made similar observations in cases related to former prime ministers Benazir Bhutto and Nawaz Sharif. After joining a political party, a member’s vote was considered a collective right, he added.

Regarding the Sindh House incident, the Inspector General Police said the JUI-F workers also tried to go towards the Sindh House, however, they were stopped near the Balochistan House. He said that they were ashamed over the incident.
The Attorney General said orders had been issued to the police and authorities concerned to investigate the matter.

The chief justice said the real issue was stopping the MNAs from voting.
He said the case was heard on Saturday to urge everybody to act according to the Constitution.
The Attorney General said the public would not be allowed to enter the Red Zone area during the assembly session.
He urged the government and the opposition to express their disagreements politely.

The chief justice said that a larger bench would be formed on the presidential reference. He said that all parties should submit their responses in writing regarding the reference and a political party if wanted to become a respondent in the reference could file an application.

In the reference, the government sought the apex court’s opinion on two interpretations of Article 63-A that which one should be adopted and implemented to achieve the constitutional objective of curbing the menace of defections, purification of the electoral process and democratic accountability.

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 “visualizes 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 neutralizing the effects of vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct.”

The reference stated if the constitutional disapproval and prohibition against defection was effectively enforced with deterrence for future as well, many such members should stand disqualified for life under Article 62(1)(f) and would never be able to pollute democratic streams.

“It was barely a year ago in the wake of elections for the Senate that compelling evidence in the form of audio and video recordings showing horse-trading emerged leaving the identities of perpetrators in no doubt yet nothing meaningful has been done in that respect till date,” the reference read.

The reference stated,“The questions of law of public importance revolving around interpretation of Article 63A of the Constitution have arisen in the context of the unending malaise of floor crossing and defections that have sullied and damaged the purity of the democratic process in the country for decades.

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 leaves admissible or traceable evidence. Some of the presently defecting members have even publicly admitted to defection in interviews to the media with evident pride and further commitment to stay engaged in this immoral trade as the prima facie consequence is innocuous while gains in cash and kind may be colossal without any possibility of loss of membership of Parliament for life.”

The reference further added, “It is evident from the overall constitutional scheme that defection / floor crossing is a morally reprehensible and destructive act which shakes the confidence of the public in the democratic process. 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.

“There is presently no specific period of disqualification provided in respect of members found guilty of defection. This court has observed in many cases that defection or floor crossing is nothing short of cancerous to the entire body politic and it destroys the spirit of democratic governance. Therefore, there can be no valid or cogent reason or justification to treat this cancer as an innocuous and pardonable requiring no more than de-seating of the incumbent and allowing him fresh opportunity to get re-elected soon thereafter.

“Hon’ble court may be pleased to answer the questions of law so as to purify and strengthen the democratic process worthy of people’s respect and trust and forever eradicate the menace of defections,” the reference concluded.


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