ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial observed on Friday that as judges “we hope to act in accordance with our conscience and the Constitution and then pray that whatever we decide should benefit the nation”.

The observation came when senior counsel Makhdoom Ali Khan, who represents the Pakistan Muslim League-Nawaz, drew an analogy between the Supreme Court’s April 7 decision in the National Assembly deputy speaker’s ruling case and a quote from Seamus Heaney, a Nobel-winning Irish poet: “History says, ‘don’t hope on this side of the grave’… But then once in a lifetime the longed-for tidal wave of justice can rise up and hope and history rhyme.”

The counsel said the April 7 decision was very significant since it was delivered when a session of the National Assembly had already been requisitioned on the no-trust motion and when a beleaguered prime minister apparently knew he had lost his majority in the lower house.

The CJP, however, acknowledged that the court was dealing with a very important question in the presidential refere­nce — interpretation of Article 63A of the Constitution — and wondered whe­ther the court could remain prisoner of the words used in the question or rephrase it.

Chief Justice Umar Ata Bandial admitted that Pakistan was a nascent democracy, but “we should cooperate to lead the country to mature democracy, but it could happen only when we debate on issues”.

Justice Munib Akhtar said the most honourable option for a member who intended to question the decision of the party head was to resign and go home.

Makhdoom Ali Khan argued that even if such an individual resigns, the government would still be defeated since it was going to lose a crucial vote.

The counsel argued that decisions of the court must be obeyed whether one liked it or not and no resistance should be offered to it.

He recalled that despite apprehensions of defections, no member deviated from the party line during the no-confidence vote on April 9.

“Therefore, the reference is not based on facts and what is being feared did not happen,” the counsel contended. “Thus the presidential reference has not survived the time.”

Referring to criticism on the April 7 apex court order, Makhdoom Ali Khan cited a statement by Abraham Lincoln on June 26, 1867, in which he said: “This is how statesmen behave even when they dislike a decision. They accept it. They work to change it through the courts while remaining obedient to it in life.

“Disobedience would lead to anarchy. A republic cannot survive disobedience to judicial decisions.”

The CJP observed that the reference was still relevant in view of the events that took place.

Makhdoom Ali Khan argued that the reference had called upon the apex court to give an opinion under its advisory jurisdiction, but at the same time the head of the political party concerned had also moved a petition under Article 184(3) of the Constitution on the same lines. “This is like a second bite of the cherry,” the counsel contended.

He emphasised that none of the members against whom the reference was intended were made respondents nor were notices issued to them.

Mr Makhdoom referred to a suggestion by PTI counsel Ali Zafar that a “purposive interpretation” by the Supreme Court on the reference would imply that a defector’s vote should not be counted so that he could not enjoy the fruits of his disloyalty and argued that no such prayer was made either in the reference or the PTI petition.

Makhdoom Ali Khan observed that through the reference the apex court was being asked to invoke Article 63A only to bypass the requirement of Arti­cle 239 of the Constitution, which dealt with the constitutional amendment.

Thus if the Supreme Court comes up with life-time disqualification for defection and rules that a defecting member’s vote must not be counted, the court’s opinion would virtually supersede the constitutional amendment.

“Given the present political divide,” the counsel argued, “some of the questions on which the opinion was sought were political in nature”.

“The court can decide political cases, but not political questions.”

Besides another question being asked about steps to eradicate floor crossing was far too vague to be answered by the apex court, Makhdoom Ali Khan stressed.

‘Morally neutral’

The counsel said he did not see Article 63A as a moral clause even though it was “morally abhorrent.

“But the provision still is morally neutral. A person can vote in accordance with his conscience if he genuinely feels that the prime minister has become a threat and no longer fit to lead if he is pursuing a bad law.”

But his conscience would be immaterial in the present case since he would lose his seat whereas a person who had taken money and voted in favour of the bad law would succeed.

Ali Zafar, the PTI counsel, concluded his arguments on Friday. The court will now meet after Eid holidays.

Published in Dawn, April 23rd, 2022