CJP Justice Umer Ata Bandial asks why parliament didn’t determine disqualification period

ISLAMABAD: The Chief Justice of Pakistan, Justice Umer Ata Bandial, while hearing the presidential reference seeking interpretation of Article 63(A) of the Constitution, remarked on Wednesday why the parliament did not determine the length of disqualification of dissenting members. 

He also said the practice of horse-trading was also witnessed in the past as well but those members were again accommodated by the respective parties but underlined that the court would stick to the constitution.

The Supreme Court was told on Wednesday that the Presidential Reference, seeking the interpretation of Article 63(A) of the Constitution, was speculative and the president was advocating the cause of the prime minister.

A five-member bench of the apex court, headed by Chief Justice Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhel, heard the Presidential Reference seeking interpretation of Article 63(A) of the constitution.

Continuing his arguments, Makhdoom Ali Khan, counsel for the Leader of the Opposition in the National Assembly Mian Shehbaz Sharif, submitted before the court that the questions raised in the Presidential Reference were speculative. It was speculative because the allegation of the defection of ruling MNAs in this reference in terms of Article 95 and 63-A of the constitution was not real as the dissident MPs have not yet tendered resignation or joined other political parties, Makhdoom Ali Khan submitted. The counsel specifically referred to the timing of the filing of the Presidential Reference and questioned why the president filed a reference at a time when the no-confidence motion was requisitioned in the National Assembly. “Filing a reference at such a time by the president raises a question mark," Makhdoom Ali Khan contended adding that the apex court was also seized already with the petition filed under Article 184(3) of the constitution, pin-pointing the relevant questions. Terming the reference non-maintainable, the counsel submitted that the president could send the reference seeking the opinion of the court on legal matters but not on political matters.

Justice Munib Akhtar, another member of the bench, observed that in the Wukala Mahaz case, which was filed under Article 184(3) of the constitution, pleaded for the intervention of the court and the court gave its order because the issue was very much alive.

Makhdoom Ali Khan, however, replied that the Attorney General at that time had raised objections on the petition stating that the issue was brought at a time when none of the political parties had raised objections to the matter.

Justice Jamal Khan Mandokhel asked the learned counsel as to whether the ruling party had requested the president to file a reference in the court. Makhdoom Ali Khan, however, replied that this question should be posed before the counsel for the ruling PTI. The counsel further submitted that the government, instead of the court’s decision, sought lifetime disqualification through the reference. "At this critical juncture, your lordship has been approached for seeking your opinion," the counsel for PML-N submitted. Justice Ijazul Ahsen, another member of the bench, however, observed that the reference sought the interpretation of Article 63-A of the constitution. Once an Article of the constitution is interpreted, it is interpreted once for all having long time consequences. The counsel questioned as to why the government felt the need to pose questions before the court at this time by giving justification of horse-trading proof held in the last Senate elections. "One year has passed but the government has not yet taken action on the proof of horse-trading in Senate elections”, the counsel submitted adding that the questions raised in the Presidential Reference were political in nature.

"What I understand from your arguments is that defecting from the party is not bad," the Chief Justice told the counsel. "But the pertinent question still is as to why the Parliament itself did not determine the length of disqualification of members”, the Chief Justice asked the counsel. The chief justice observed that the practice of horse-trading was also witnessed in the past adding that the defected members were again accommodated by the respective parties.

"Maybe the party pardoned the members for voting against it," the CJP remarked but added that the court is to adhere to the constitution.

"When the system is weak, the court has to come to save the constitution”, the CJP remarked. The Chief Justice further said why the court should determine and why it should not be left to the political process as well. “Though I am not convinced the question is there”, the Chief Justice added.

Justice Ijazul Ahsen observed that forums of the Election Commission and the Supreme Court are available for taking action against the dissident members. But still, the question is there as to what would be the length of disqualification, the judge added. "I am not saying that action against the dissident members was wrong but why the government did not take practical steps against horse-trading," Makhdoom Ali Khan contended.

"But in the present situation there was no need for proof," Justice Ijazul Ahsen remarked adding that at present the matter relates to dissident members. Justice Jamal Khan Mandokhel asked as to what was the purpose of issuing show-cause notice when it was clear that a person has defected. "If we hold that defection was a heinous crime, then the party’s head was authorized to issue a declaration and ask the Election Commission to take action”, Justice Mandokhel asked the counsel.

The judge remarked that it will be examined as to whether the President could seek their opinion adding that as to whether the dissident member could be disqualified for life in the wake of declaration of the party’s head. Makhdoom Ali Khan submitted that every act was not culpable of leading to defection adding that the dissident may say that he may vote against the party’s discipline in the largest interest of nation. At this, the Chief Justice observed that the wrong can be explained and condoned.

Makhdoom Ali Khan submitted that in the present reference, nothing has been mentioned about party declaration or show cause notice adding that the court cannot give a decision in a vacuum and could not be influenced by the outside situation. He submitted that the PTI constitution has mentioned the process of joining the party but fails to mention the consequences of defection.

The counsel recalled that after the Senate elections, the prime minister had said that he will take the vote of confidence adding that if his members did not pose confidence they could express freely. The counsel submitted that the president was advocating the cause of the prime minister adding that although the president is bound by the advice of the prime minister but he could have also returned it in 15 days and should have asked the prime minister to discuss the issue in the cabinet.

Justice Munib Akhtar observed that the law prohibits bribes for selling votes adding that in Senate elections, there were allegations of selling votes.

The judge questioned whether an independent candidate after winning the elections and joining another party would not be dishonesty to the public. The judge further questioned as to whether Article 63-A will not be applied on that person after joining a political party.

Earlier, in pursuance of the court’s last order, Advocate General Islamabad submitted progress regarding the attack on Sindh House in the federal capital and informed the court that non-bailable arrest warrants of the PTI members of Parliament, accused in the incident have been issued and added that one Tauseef, a worker, has been re-arrested. He told the court that although the session of the National Assembly was in progress, the MNAs would be arrested.

The law officer further told the court that some of the accused in the incident belong to KP and Sindh province and the process of their arrest was in progress adding that around 16 accused have been nominated in the said incident.

Meanwhile, the court directed the Islamabad Police to proceed with the matter in accordance with the law and sought a progress report as well. Later, the court adjourned the matter until next Monday at 1pm.