Giving unfavourable verdict: Supreme Court questions culture of criticising courts

ISLAMABAD: The Supreme Court on Tuesday hinted at examining first whether defecting from a party was a crime and, if so, then what will be its effects. The judges also mentioned the prevalent culture of welcoming judgments when it comes in favour and an uproar is raised in the opposite case. 

The judges also asked if defection was a vice, then why voting was not banned against the prime minister. On the other hand, PPP's counsel Farooq H Naek said a penalty cannot be imposed merely on the intent of voting against the party line.

A five-member bench of the apex court, headed by Chief 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.

During the hearing, Chief Justice Umar Ata Bandial recalled that earlier, the apex court gave its recommendations in the Presidential Reference regarding the Senate elections but nobody followed it. 

Referring to the issue of defection of members of parliament, the Chief Justice wondered about the neutrality of political parties on defections, adding defectors were accommodated in other parties.

During the hearing, the Chief Justice asked if a vote of no-confidence motion is moved against the prime minister in the fourth year of a ruling government and a reference is filed with the Election Commission of Pakistan against the defecting members of parliament, by the time the reference would be decided, the assemblies would have completed their term and the member would not face any consequences, such as de-seating.

Justice Jamal Khan Mandokhel asked the counsel as to whether the Election Commission could reject a reference filed against the dissidents. If defection is such a huge crime, then why voting was not banned against the prime minister, Justice Mandokhel asked the counsel. Naek replied that the Election Commission was bound to decide the reference within the stipulated time.

Justice Ijazul Ahsen, another member of the bench, observed that a culture has been established in the country where people blame the courts when judges announce unfavourable decisions but when judgments suit them, they declare that justice has been done.

The judge further observed that history is witness that defection does not happen only when the conscience of a member awakens, adding efforts are being made in the Western countries for discouraging the trend of defection. But what will be the punishment for defection is the real question, Justice Ahsen remarked.

Farooq H Naek, counsel for Pakistan Peoples Party, submitted that the disqualification of a dissident MP will remain till the completion of the remaining time of the assembly. He submitted that floor-crossing happens when a party member votes for some other party and added the punishment for defection is quite clear in the Constitution. Naek rejected the arguments of the former Attorney General Khalid Javed and contended the ex-AG did not give constitutional arguments on the issue of lifetime disqualification. Justice Jamal Khan Mandokhel asked Naek why the vote of the dissident member was counted, if the counsel was submitting that defection from the party was a crime.

Farooq H Naek submitted that there was no bar on the member to vote against the party wishes but when he votes against the party wishes, then it is tantamount to a crime. Justice Mandokhel asked: “Is it a crime to vote against the party lines…what kind of crime is this that has been allowed by the Constitution.”

Farooq H Naeq, however, submitted that in the 1973 Constitution, the Article 96 forbids defection from party, while the vote was also not counted in any election process. But the military dictator inducted articles 62 and 63 in the Constitution. About Article 63-A, Justice Ijazul Ahsan said prima facie, the purpose of this article was to stop floor-crossing. “The court wants to examine if the punishment for defection is harsh enough to act as a deterrent,” he added. “What will be the sentence for defection, this is the actual question,” he said.

Farooq H Naek submitted that the intention of inserting Article 63-A in the Constitution will have to be looked into adding that every government and dictators had amended articles 58, 62, 63 and 96. He contended that the disqualification of a dissident member will remain till the remaining period of the assembly adding that a case under Section 302 cannot be made out on the intent of a murder i.e. intent to vote against the party line does not draw a punishment.

Farooq H Naek submitted that during 1990, assemblies were dissolved while invoking Article 58(2)(b), adding the Article 63-A does not mean political death for a dissident member. The court later adjourned the hearing for today (Wednesday) wherein Farooq H Naek will continue his arguments.