ISLAMABAD: A presidential reference seeking the Supreme Court’s interpretation of Article 63-A of the Constitution was a “veiled tool” to instil fear among MNAs and prevent them from exercising their fundamental rights guaranteed under Article 17 (freedom of association) and Article 19 (freedom of speech) in the no-confidence motion against the prime minister, the Sindh government told the apex court on Saturday.

In a three-page statement moved through Advocate General Sindh Salman Talibuddin, the Sindh government argued that the issues raised in the reference were of political, social and moral nature, which could not be answered by the Supreme Court.

A five-judge Supreme Court bench headed by Chief Justice of Pakistan Umar Ata Bandial will resume hearing of the presidential reference on Monday (tomorrow).

In the statement, the Sindh government argued that the reference had been filed at a time when the environment was politically charged in the country. It said embroiling the judiciary in political issues was not only improper but also an abuse of the process of law.

Says issues raised in presidential reference cannot be answered by apex court as they are of political, social and moral nature

The questions raised in the reference regarding floor crossing were based on circumstances that were speculative and hypothetical, it said, adding that the reference ought to be returned unanswered in the absence of a real and live controversy.

The Sindh government argued that Article 63-A prescribed a complete procedure to be complied with before an MNA ceased to be a member and their seat became vacant. But reading into the article, as urged in the reference, would render it redundant and the references to the Election Commission of Pakistan (ECP) and to the Supreme Court would become entirely illusory.

No pre-emptive action could be taken against members of parliament to prevent them from participating in the no-confidence motion, the statement said, adding that the presidential reference was based entirely on the “unfounded premise” that defection in terms of Article 63-A was evidence of wrongdoing that entailed lifetime disqualification.

Therefore, the issue raised in the reference should be left to the parliament to decide, the Sindh government said.

Meanwhile, Islamabad Advocate General Niazullah Khan Niazi emphasised that though Article 63-A prescribed the procedure for proceeding against a defector, the present situation represented a constructive opportunity for the courts to instil certainty in the democratic process and prescribed the standards to be observed under the Constitution with maximum limitations but by ensuring certain golden principles for democracy in Pakistan.

It said the present government had shown many commitments to end horse-trading in politics, but the menace could not be dealt with without setting a tough precedent for the “traders of conscience” and taking strict action against all those through permanent disqualification who violated the provisions of Article 63-A.

Thus, the opinion of the apex court would have a long-lasting effect on the country’s political culture and democracy, Mr Niazi said.

It was a well-established and long-standing practice of the Supreme Court to ensure the legislative intent and spirit of the framers of the Constitution and the need to maintain a democratic polity in Pakistan, he said, adding that the apex court had strived time and again to ensure a fair democratic process.

In the present political system, most MNAs are elected on a party basis and therefore they represent the will of the people. But to digress from the party lines is an action that may not in the strictest sense entail automatic disqualification under Article 63(1f) of the Constitution.

Islamabad’s reply highlighted that if a lawmaker cast his vote contrary to the party lines, he should be held accountable pursuant to Article 63-A and in that eventuality, the Constitution envisaged due process for the accountability of the defector.

Published in Dawn, April 3rd, 2022