ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial on Thursday observed that it would be an insult to the lawmakers if the vote they cast in parliament was ignored and discarded as if it is worth nothing.

“Article 63-A of the Constitution is an evolution of the political system,” the CJP observed, adding that Article 96 of the 1962 constitution provided a remedy by not counting the vote of members in case of any defection, but it was deleted and now Article 63-A has been inserted through the 18th Amendment, which expressed in clear terms when defection applies.

CJP Bandial observed this while heading a five-judge Supreme Court bench, which was hearing a petition filed by the Supreme Court Bar Association (SCBA), as well as the presidential reference seeking interpretation of Article 63-A of the Constitution.

A number of replies were filed by the JUI-F, PPP and SCBA highlighting that Article 63-A was undemocratic and that the ruling PTI itself had never held intra-party elections.

Justice Munib Akhtar says those committed to parties must adhere to their discipline

CJP Bandial observed that the court could understand the constitutional provision in one way while the intent of its original framers might be different. Therefore, he said, these issues must be debated and decided by parliament instead of the court filling in the blanks.

The CJP explained that de-seating a member over defection was a two-stage process; after issuing a show-cause notice the matter would be referred to the Election Commission of Pakistan (ECP), which would determine whether the procedure was followed. Besides, he said, the appeal against the commission’s decision would come before the apex court to decide.

Justice Jamal Khan Mandokhel cited Article 55 of the Constitution and wondered when the government itself had the answer, then why it was seeking an answer from the court. In the developed world, he said, it was the parliamentary majority, and not the party head, which decided candidates for the premiership.

“Why do you want to make the party head a king?” Justice Mandokhel asked, pointing towards Attorney General for Pakistan (AGP) Khalid Jawed Khan.

The AGP said every society had its own norms like in the West the prices of items were reduced before Christmas while here prices were doubled before the advent of Ramazan. He emphasised that one should not encourage ‘lotacracy’ — a term used for turncoats.

Article 55 explains that all decisions in the National Assembly will be taken by the majority of members present and voting.

Justice Mandokhel reminded that party discipline also had certain limits, since members also had some responsibility towards their electorate.

Justice Mazhar Alam Khan Miankhel observed that Article 63-A clearly defined the defection of a member, reminding that a member decided to raise his voice against party lines on some grounds or reasons.

The AGP explained that the reference was instituted in view of the emergent situation when certain members took refuge inside the Sindh House and certain allegations were levelled regarding buying and selling of their loyalties. This gave rise to the need for interpretation of Article 63-A of the Constitution and the theme was to disqualify the person for life as a consequence if declared to have defected, he argued, adding that Articles 62 (qualification), 63 (disqualification) and 63-A (defection) were like a family and should be read in conjunction as they were not stand-alone provisions.

Citing Articles 19 and 51(2) of the Constitution, the AGP argued that vote cast by the citizens in elections was an irreversible exercise and translated into the party strength in the assembly. Hence, the party, through its elected members steered by the party whip, carried the voters’ mandate to implement its manifesto in the House for legislation and policymaking, he added

At this, Justice Ijazul Ahsan said the AGP was trying to establish that ordinary citizens and parliamentarians were different species and carried different rights and obligations, and that the parliamentarians were not acting as free agents.

The AGP explained that Article 63-A was essentially an anti-defection provision, meant to curb the age-old menace of horse-trading which had pervaded the political system. “Its true impact and effect cannot be appreciated by isolated reading of Article 63-A and its interpretation requires appreciation of history, the mischief which it means to eradicate, and to see whether its conventional understanding and interpretation has frustrated or promoted achievement of the highly desirable constitutional goal.”

The idea was to prevent defection instead of promoting it, the AGP said, adding that the individual vote of the member was a rudderless one in parliamentary democracy.

Justice Munib Akhtar observed that in the party, the entire system would collapse if the members functioned individually and, therefore, they were constrained to follow party lines. “If you are committed to a political party then one has to adhere to its disciple, otherwise the entire party will collapse,” he observed.

Sindh House incident

Meanwhile, the apex court noted that the Sindh government had recorded its version to the Islamabad police on Sindh House’s March 19 events and that the inspector general had assured them of its incorporation in the FIR and subsequent action.

The court noted that the JUI-F had moved an application before the district management of Islamabad for holding a rally and subsequent sit-in close to the Kashmir Highway, but the administration believed that it would be difficult to manage since the road led to the airport; besides, other rallies would also pass through this road.

Senator Kamran Murtaza, representing the JUI-F, however, assured the court that they would act strictly in accordance with the Constitution and law and abide by whatever decided.

During the hearing, CJP Bandial observed that one should make example of democratic behaviour. Referring to Raza Rabbani, he observed that the court wanted to make him amicus curiae, but since he was representing a political party, it would like to hear him.

The case will be taken up again on Friday.

Published in Dawn, March 25th, 2022