Deviation from party policy could be in interest of country: Justice Mandokhel

The Supreme Court of Pakistan's judge Justice Jamal Khan Mandokhel on Tuesday said that deviation from party policy could be in the interest of the country. 

A larger bench of the apex court, headed by Chief Justice Umar Ata Bandial, heard the case on the presidential reference regarding the interpretation of Article 63-A of the Constitution related to disqualification of legislators over defection.

During the hearing, Justice Ijaz-ul-Ahsan stated that the political tradition of “buying and selling a few people” jeopardises the future of 220 million citizens and should be stopped. He added that a member of the parliament would remain disqualified until a court cancelled the declaration of his disqualification.

He also maintained that it has become a tradition in Pakistani politics to overthrow a government with money.

The Pakistan Tehreek-e-Insaf’s (PTI) advocate Babar Awan presented arguments, stating that those who default on the payment of utility bills are not eligible to become a member of parliament.

"If the time period is not determined then the disqualification is for life," he contended.

In response, Justice Mandokhel questioned whether the member would continue to remain disqualified if they paid their outstanding bills before the next election.

“The disqualification would end once the outstanding dues are paid. Only disqualification under Article 62(1)(f) is for life,” Justice Ahsan answered. He observed that the disqualification will be upheld until the declaration is cancelled by the court. 

"Disqualification for the non-payment of utility bills cannot be for life," Justice Ahsan furthered.

The PTI lawyer claimed that it was “a joke” to Article 63-A if a de-seated legislator can return to the parliament within 15 days, and become a minister.

Read PTI dissidents term reference baseless

“The door of repentance is always open,” Justice Mandokhel replied stating that Awan had the power to reform the law.

The bench clarified that Awan was calling upon the apex court to declare dissenting party members “disqualified for life". The PTI lawyer responded that “it is a serious crime".

Justice Mandokhel claimed that violation of Article 63(1)(g), which relates to the ridicule of the judiciary and ideology of Pakistan, is a more serious crime.

Justice Munib Akhtar questioned Awan as to how Article 63-A was related to Article 62(1)(f), to which he responded that Article 63-A itself disqualified dissident lawmakers for life.

"Should 26 lawmakers be allowed to abandon the party?" the ousted government’s lawyer asked. “In this way, the majority party will become a minority,” he said.

Justice Ahsan observed that Awan had requested the court to implement a “rigid” interpretation of the Constitution to be implemented such that no member can defect.

Read Dissident PTI legislators submit reply to ECP

Babar Awan argued that the unanimously passed 18th Amendment launched a “surgical strike against the cancer of defection”.

The lawyer added that the apex court had unlimited powers to pass rulings that cemented law, stating that the court granted General Pervez Musharraf the power to amend the Constitution.

Justice Mandokhel said that some believe the judiciary should be independent while others believe it should be subservient to the Constitution. “Parliament, the judiciary and the executive should all be subservient,” he upheld.

Awan replied that only the judiciary must ensure all legislative branches are subservient to the Constitution.

As Babar Awan concluded his argument, Pakistan Muslim League-Quaid (PML-Q) lawyer Azhar Siddique began his.

Justice Mandokhel asked the PML-Q counsel whether independent legislators accept a party’s every decision, to which Siddique replied that independent parliamentarians take an oath to accept all the conditions before joining the party.

Read Imran moves SC to ban dissident PTI lawmakers for life

“Deviant members have taken an oath on the Qur'an, these are bitter realities and I do not want to go into it,” said Siddique.

Justice Mandokhel added that Article 63-A provides a forum for action against deviant members, to which Azhar Siddique said that such members cannot vote.

The judge then said that the punishment under Article 63-A is the termination of the membership of the party dissident, asking the PML-Q counsel if he wanted to increase the punishment of the member.

"Increasing the punishment is not my case,” replied Azhar Siddique, arguing that Article 63-A presented a “protective wall against the no-confidence motion.”

Justice Mandokhel responded that if the dissident member’s vote is not counted, how could they be punished?

Justice Ahsan observed that the practice of “buying and selling lawmakers” should come to an end.

During the hearing, Siddique also referred to the Charter of Democracy – a 36-point document signed by the PPP and PML-N to purport democracy. To this, Justice Mandokhail observed that had it been agreed upon unanimously, it would have been a part of the Constitution.

“No one barred the party leaders from punishing defecting members. The leader is only required to specify that the member has defected,” he said.

During his arguments, PML-Q lawyer Azhar Siddique said that there would be departmental action against the perpetrators of corruption, including military action.

Justice Mandokhel upheld that such action would be inappropriate, “if horse-trading and corruption were proven, then action would be taken.”

The SC Chief Justice Bandial asked the counsellor under which laws would dissident lawmakers have their votes discounted.

Justice Mandokhel added that when two members of the PML-Q voted against the party, the party chief exercised his authority and did not take any action.

Siddique responded to the apex court stating that if defection was permitted, then Article 63-A was unnecessary.

“Deviation from party policy could also be in the interest of the country,” Justice Mandokhel stated.

Subsequently, the court directed Azhar Siddique to complete his arguments in 15 minutes and adjourned the hearing till 12 pm tomorrow (Wednesday)

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