'Lawmakers have to follow party policy — period,' says SC judge

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.

Tiger Force and Ansar-ul-Islam

Earlier, during the hearing, the Supreme Court also expressed concern over the outfits established by different political parties.

Justice Alam said that the Tiger Force — established by the prime minister during the initial days of the COVID outbreak — and baton-wielding force, an apparent reference to JUI-F's Ansar-ul-Islam, were a "misfortune" for the country.

The apex court asked all the political parties — including the ruling PTI — to follow the law when their respective rallies are held in a few days.

When the SC inquired AGP Khan about the JUI-F's plan to hold a sit-in at the Kashmir Highway, the attorney-general said if the party would remain peaceful, then the government has no issues.

The AGP said that all the lawmakers use the Kashmir Highway to reach Islamabad.

At this, JUI-F's lawyer Kamran Murtaza said the party has stated clearly in the application that it would hold the sit-in in line with the law.

"Our sit-in will be peaceful."

"The government is afraid of you," the CJP told JUI-F's, after which the courtroom burst into laughter.

'Individual right'

Before today’s hearing, the Supreme Court Bar Association (SCBA) submitted a written reply regarding the presidential reference. Under Article-95 of the constitution, it is the individual right of a parliamentarian to cast vote on the no-trust motion, said SCBA.

‘No member of the National Assembly can be barred from exercising his/her democratic right ahead of voting,” it added. The SCBA further said that every vote cast by the lawmakers under Article-95 cannot be excluded from the counting.

Under Article 63-A, a lawmaker cannot be disqualified for casting vote against the direction of his party, added the SCBA.

Meanwhile, Jamiat Ulema-e-Islam (Fazl) has also submitted its written reply in the reference in the apex court. 

“The ruling PTI is being run by selected office-bearers as the party did not hold intra-party elections,” the JUI-F said, adding that selected office-bearers, under Article 63-A, cannot direct their lawmakers to cast vote in favour or against any motion.

NA speaker cannot be given the right to reject the votes of the MNAs, it said, adding that lifetime disqualification for voting against the party line will further weaken the democracy in the country. 

‘Tool of political parties’

Meanwhile, Minister for Information and Broadcasting Fawad Chaudhry has reacted strongly to the SCBA’s response in the apex court.

He said that it seemed that the bar was a subsidiary of PML-N.

In a tweet, the minister said that the job of lawyers’ organizations is not to become tools of political parties but to maintain their independent status.

He said that common lawyers were dissatisfied with the role of bar associations and the defeat of this group in Lahore Bar’s elections was the reaction of the lawyers’ community.

SC forms larger bench 

On March 22, the apex court had constituted a five-member larger bench to hear the presidential reference filed by the federal government to seek the top court's opinion on Article 63-A.

The government had decided to approach the SC for interpretation of Article 63-A as several PTI lawmakers announced to vote on the no-trust motion, in a violation of the party policy.

In the reference, the government sought the apex court’s opinion on two interpretations of Article 63-A and 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.

The reference stated if the constitutional disapproval and prohibition against defection was effectively enforced with deterrence for the future as well, many such members would 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.