Supreme Court Justice Ijazul Ahsan questioned on Wednesday whether disloyalty to a political party by a parliamentarian was dishonesty and could lead to his disqualification.

He raised the questions during the hearing of a presidential reference seeking the apex court's interpretation of Article 63-A of the Constitution, which is related to disqualification of lawmakers over defection.

A five-member bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, heard the reference.

"Is disloyalty not dishonesty?" Justice Ahsan asked PPP counsel Farook H Naek who presented his arguments during the hearing today. He further asked whether a lawmaker could be disqualified over "dishonesty".

Naek replied that "disloyalty" was a strong word, adding that it was not mentioned in Article 63-A.

At the start of the hearing today, Naek recalled that Article 58-2(b) — under which elected governments had been sent packing in the past — was abrogated in 1997 through the 13th Amendment but was brought back by military dictator Pervez Musharraf in 2002.

The article was again removed through the 18th Amendment in 2018, he said.

Article 63-A was made a part of the Constitution via the 14th Amendment, he said, adding that it gave broad powers to party heads.

The Election Commission of Pakistan (ECP) did have not have the authority to reject the party head's decision prior to a presidential order amending Article 63-A in 2002 that reduced the powers of party heads, the PPP counsel said.

The 18th Amendment further reduced the powers of party heads and transferred them to the parliamentary leaders of the parties, he said, adding that after Article 63-A was amended, the authority to make the final decision was given to the SC.

"According to the 18th Amendment, the authority to make a decision on a reference related to Article 63-A was given to the ECP." The amendment also bound the ECP to announce a decision within a month, he informed the court.

He contended that the presidential reference seeking the court's opinion was only related to sub-clause 4 of Article 63-A — which states that a parliamentarian would no longer be a member of the house and his seat would become vacant once the ECP confirms the party head's declaration stating his defection.

Justice Ahsan pointed out that Article 62(1)(f) did not specify the length of disqualification but its interpretation was provided by the SC.

Naek responded that lawmakers had not determined the length of disqualification for defecting lawmakers under Article 63-A.

'Ticket holders take oath against deviation'

Justice Ahsan remarked that ticket holders swear in their nomination papers that they would not deviate from party policy.

Naek said that the rules for punishing a party worker for violating party discipline were underlined in Article 63-A of the Constitution. "Whether it is dishonesty or disloyalty, the consequences of both are underlined in the Constitution," he said.

The PPP's counsel said that a dissident party member would effectively lose his seat.

Justice Munib Akhtar remarked that not abiding by one's oath amounted to "dishonesty", adding that a dissident is elected on a ticket from a particular political party.

"What is cancer? Cancer is when the body's cells begin destroying the body," he commented, adding that deviation from the party had also been called a cancer.

The CJP remarked that in four instances, loyalty had been equated to party policy. He added that during the attorney general's arguments, the court was told that Article 63-A was related to loyalty.

"Loyalty is a basic constitutional principle," the CJP said. "Article 5 states that every party member should be loyal to the state," he said, adding that "disqualification was a minor matter".

The CJP remarked that the basic purpose of Article 63-A was to ensure loyalty to the party. "When a member says he is part of a particular party in his oath, that means he is bound by the party policy."

Naek argued that a party worker was not a "slave" that he would listen to all directives.

Justice Ahsan asked whether government employees would be considered slaves. "All parties have some rules and regulations which must be followed," Justice Ahsan said.

The CJP went on to say that if a person is qualified on the basis of dishonesty, they would also be disqualified from the next election.

"This is not written anywhere in the Constitution," Naek argued. "Show me where it is written and I will leave the rostrum."

Justice Ahsan said that Articles related to the qualification and disqualification of a lawmaker were not a "wall of fire".

Naek said that loyalty only existed within the monarchy, adding that the people should be allowed to decide who to elect.

Justice Ahsan then asked whether Articles 62 and 63 should be removed from the Constitution.

Justice Mandokhail noted that a "big punishment" such as disqualification could not be handed down without a trial. He added that an independent candidate who joins the party after winning does not take an oath swearing allegiance to the party.

Naek argued that no party member takes an oath to obey all the directives of the party chief.

Justice Ahsan remarked that political parties were the backbone of the parliamentary system. "How can the system be run where the backbone is plagued by cancer?" he asked.

Naek said dissident members were de-seated but not disqualified.

The chief justice observed that Article 63-A had been invoked in only one instance since 1998 which meant that it was not taken seriously by party heads.

He also questioned why defecting lawmakers were later welcomed back to the party's folds. "The reason is the flexibility in politics."

The PPP counsel responded that rigidity in politics led to chaos.

Justice Akhtar asked Naek whether a lawmaker who had been de-seated could contest by-elections to which the counsel replied in the affirmative.

"The punishment for someone who deviates is that he is de-seated," Naek added.

Article 63-A step towards 'mature democracy'

Meanwhile, Advocate General of Sindh Salman Talibuddin said that lawmakers who "sold their votes for money" could be asked to resign, arguing that the court was being "unnecessarily" dragged into politics.

Article 63-A was a step towards mature democracy, he contended. "It says that you (the lawmaker) should go back to the people."

The chief justice remarked that while deciding on a case related to Article 63-A, the court could ask several questions: Has a vote been cast against party lines? Has the lawmaker deviated from party policies? If a vote was cast against party lines, can the court determine anything?

Subsequently, the hearing was adjourned till tomorrow.

Presidential reference

Ahead of its ouster, the PTI government had filed a presidential reference for the interpretation of Article 63-A, asking the top court about the "legal status of the vote of party members when they are clearly involved in horse-trading and change their loyalties in exchange for money".

The presidential reference was filed under Article 186 which is related to the advisory jurisdiction of the SC.

In the reference, President Dr Arif Alvi also asked the apex court whether a member who "engages in constitutionally prohibited and morally reprehensible act of defection" could claim the right to have his vote counted and given equal weightage or if there was a constitutional restriction to exclude such "tainted" votes.

He also asked the court to elaborate whether a parliamentarian, who had been declared to have committed defection, would be disqualified for life. Alvi cautioned that unless horse-trading is eliminated, "a truly democratic polity shall forever remain an unfilled distant dream and ambition".

"Owing to the weak interpretation of Article 63-A entailing no prolonged disqualification, such members first enrich themselves and then come back to remain available to the highest bidder in the next round perpetuating this cancer."

The reference had been filed at a time when the then-opposition claimed the support of several dissident PTI lawmakers ahead of voting on the no-confidence resolution against then-prime minister Imran Khan. Eventually, the dissident lawmakers votes were not needed in Khan's removal, as the opposition managed to stitch together support from government-allied political parties.

However, the role of dissident lawmakers was crucial in the election of opposition candidate Hamza Shehbaz as the Punjab chief minister who bagged 197 votes, including from 24 PTI dissidents.

Article 63-A

According to Article 63-A of the Constitution, a parliamentarian can be disqualified on grounds of defection if he "votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, in relation to election of the prime minister or chief minister; or a vote of confidence or a vote of no-confidence; or a money bill or a Constitution (amendment) bill".

The article says that the party head has to declare in writing that the MNA concerned has defected but before making the declaration, the party head will "provide such member with an opportunity to show cause as to why such declaration may not be made against him".

After giving the member a chance to explain their reasons, the party head will forward the declaration to the speaker, who will forward it to the chief election commissioner (CEC). The CEC will then have 30 days to confirm the declaration. If confirmed by the CEC, the member "shall cease to be a member of the House and his seat shall become vacant".