Chief Justice of Pakistan (CJP) Umar Ata Bandial on Thursday said that it would be insulting for the lawmakers they were not allowed as the process regarding Article 63 A was very clear.
A larger bench of the top court heard the presidential reference which sought an interpretation of Article 63-A of the Constitution which deals with the disqualification of the parliamentarians over defection.
The fiver-member apex bench which was led by Chief Justice of Pakistan (CJP) Umar Ata Bandial – also included Justice Mazhar Alam Khan Miankhel, Justice Ijazul Ahsan, Justice Munib Akhtar and Justice Jamal Khan Mandokhail.
During the hearing, the CJP said that SC under advisory jurisdiction could not fill blanks as which could be done through parliament.
Justice Mandokhail referred to Articles 55 and 95 which mentioned MNA's right to vote.
Justice Miankhel also asked AGP Khalid Jawed Khan as whether he wanted to make the party head as a king.
Another member of the apex bench Justice Ijaz ul Ahsan asked as AGP as what was the scope of the Election Commission of Pakistan (ECP )inquiry under Article 63 of the Constitution
Justice Ahsan noted that the ECP would examine procedural lapses during the inquiry. He noted that the Constitution does not justify the defection under Article 63 A of the Constitution.
Earlier, Justice Miankhel observed that there would be a reason for defection.
The CJP also asked AGP that the government should not link with the court opinion in this case.
When AGP readout Benazir Bhutto case judgment wherein certain observations were given against horse-trading and floor crossing, CJP said that judgment was issue and Article 63A is inserted through the 18th constitutional amendment in 2010.
PTI, PML-N, JUI-F and Supreme Court Bar Association (SCBA) submitted written replies to the presidential reference.
The response submitted by JUI-F leader and senior advocate Kamran Murtaza said the opinion sought by the president under Article 186 in this particular case was “beyond the scope of the constitution as such be returned unanswered”.
“That the subject Reference goes beyond the advisory jurisdiction of this August Court under Article 186 of Constitution and seeks declarations similar to the Constitutional Jurisdiction of this August Court under Article 184(3) of the Constitution, hence not maintainable,” the lawyer contended. According to the response, the PTI did not hold intra-party elections, therefore, the party was “being run through selectors”.
“The question would be that still the directions to ‘vote’ or ‘not to vote’ have any effect under Article 63A of the Constitution,”
It further stated, “That the opinions sought only deal with the circumstances where voting is required. However, if a situation under Article 63A of the Constitution arises where the Party Head tells the MNAs to vote but some MNAs abstain from voting then should the Honourable Speaker be empowered to count their vote even though MNAs chose not to vote? Should the Honourable Speaker, after counting the votes of MNAs who refused to vote, then disqualify them for life?”
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It said giving the powers to the speaker to reject the votes of the MNAs for not complying with directions of the party head would “lead to such absurd and flawed interpretations”.
It said the opinion sought by the president do not have to be answered within a certain timeframe, adding, “As the no-confidence motion is pending and if there is an apprehension of defection, then the matter will likely reach this August Court being the appellate body under Article 63A(5) of Constitution. Giving an opinion beforehand that too without examining the facts of each case will make the forum of Election Commission of Pakistan as completely redundant.”
In a further criticism on the reference, the JUI-F said opinion were sought on the issues in need of clarity. “This August Court has given Judgments on the issue at hand and in the present scenario, the issue may be raised again before this Court under Article 63A(5) of Constitution, thus the opinions sought ought to be either deferred for now or returned unanswered.”
It said the president wanted the court to extend beyond its mandate and to “put on the robes of the legislature to create law regarding the no-confidence motion as per the wishes of the ruling party”.
“That the advice sought under Article 186 of Constitution carries inferences that the president and prime minister of Pakistan will always be righteous and sagacious and the ruling party’s MNAs voting in no-confidence motion are always doing so for illegal benefits,” it added.
It said the interpretation sought by the president would render Article 95 – the “only lawful mechanism” to remove the prime minister – ineffective.
“However, the type of interpretation the president seeks would render Article 95 of Constitution as ineffective and the only mechanism left to remove the prime minister would be widespread protests and anarchy on the streets across the country or Martial Law.”
It said Article 63-A was already undemocratic in nature. “An example of it is that those MNAs who were elected independently and without the support of any political party, but later join the same party as the Prime Minister of the time, are also bound by Article 63A of Constitution even though they likely do not owe the party their seat or any other material benefit, yet they cannot vote against the Prime Minister simply because they choose to join the Prime Minister’s party after the elections and cannot choose to leave the party unless they resign as MNA,” it added.
“The president, on behest of the ruling party, seeks an unconstitutional approval from this August Court, whereby all elected MNAs, will be left at the mercy of the Speaker of National Assembly,” it said, adding that the reference also implied that the speaker would always be “righteous person” who will be neutral and act in accordance with the constitution.
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President Alvi is seeking to give dictatorial powers to the speaker, it said, adding that the “constitution is clear on the consequence which states that the member shall cease to be the member of the House and the seat shall become vacant”.
"Ceasing to be a member of the House in itself is a penal measure and it is for the people of his or her constituency to decide if he or she chooses to become the candidate in elections, whether the defection carried out was right or wrong.”
“Having severe consequences like lifetime disqualifications for defections from party under Article 63A of Constitution without the vote being counted will undermine the already weak democracy, and this August Court should refrain from further eroding the supremacy of parliament.”
“In view of the submissions above, it is, therefore, most respectfully prayed that the subject reference may kindly be held as beyond the scope of Article 186 of Constitution and an attempt to undermine the parliament hence may be returned unanswered,” it concluded.
The SCBA, in its written response, stated that voting under Article 95 of the Constitution is an individual’s right to MNAs and not of any political party.
“Under Article 95, every vote is counted and member of the National Assembly is free to exercise his/her right to vote,” the SCBA stated. “No member of the National Assembly could be stopped from voting.”
It added that the people run the system of government through their elected representatives and there was ‘in Article 63A for voting against party direction’.
In Its response, PML-N termed the presidential reference filed for interpretation as a ‘waste of valuable court time’.
“Articles 63A and 95 of the Constitution are clear that every member has the right to vote, which will be counted. The presidential reference is a premature and unnecessary exercise. The Supreme Court has the power to interpret the Constitution and but not to amend it,” it stated.
The ruling PTI party stated that no-confidence motion does not have individual status.
The PTI did not comment on the lifelong disqualification and said that it would be satisfied with any opinion given by the top court regarding it.
“Election Commission would be bound to implement court’s interoperation,” it said.
The top court also issued notices to the provincial governments on the presidential reference, ordering that the provincial governments to also submit written replies, which would facilitate the hearing.
The court adjourned d the hearing till 1:30 pm tomorrow.