ISLAMABAD: President Dr Arif Alvi on Monday approached the Supreme Court to seek its opinion on the interpretation of Article 63-A of the Constitution, wondering if Khiyanat (dishonesty) by way of defections warranted pre-emptive action by de-seating the member.

The reference, moved through Attorney General for Pakistan (AGP) Khalid Jawed Khan, would be taken up on March 24 by a larger bench of the apex court along with a petition of the Supreme Court Bar Association (SCBA) that sought a restraining order against the government’s “intentions” to prevent lawmakers from taking part in the no-trust proceedings against the premier.

The court said it would appreciate assistance from all political parties, including allies of the ruling Pakistan Tehreek-i-Insaf, and issued notices to them, asking them to submit their replies to the reference in writing.

Through the reference, the government has suggested to the court that the most suitable and appropriate disqualification for a declared defector should be lifetime disqualification under Article 62(1)(f).

Moved under Article 186 of the Constitution, the reference asks how Article 63-A should be interpreted, adopted and implemented to achieve the constitutional objective of curbing the menace of defections and purification of the electoral process and democratic accountability.

The reference wondered if a member engaged in the constitutionally-prohibited and morally reprehensible act of defection could claim a vested right to have his vote counted and given equal weight or there existed a restriction to exclude such tainted votes from the vote count.

According to the reference, a member who could but did not hear the voice of his conscience by resigning from his existing seat in the assembly and has been finally declared to have committed defection after exhausting the procedure prescribed in Article 63-A, including appeal to the Supreme Court under Article 63-A(5), can no longer be treated to be sagacious, righteous, non-profligate, honest and ameen and therefore, stands disqualified for life.

The reference also asked the Supreme Court to advise what other measures and steps could be undertaken within the existing constitutional and legal framework to curb, deter and eradicate the cancerous practice of defection, floor crossing and vote buying.

The questions of law of public importance revolving around Article 63-A’s interpretation have arisen in the context of the unending malaise of floor crossing and defections that have sullied and damaged the purity of the democratic process in the country for decades, the reference stated. “As happened on many occasions in past, the stage is yet again set for switching of political loyalties for all sorts of illegal and mala fide considerations including vote buying which by its very nature rarely leave admissible or traceable evidence,” it pointed out.

Some of the presently defecting members had even “publicly admitted to defection” in interviews to the media with evident pride and further commitment to stay engaged in this immoral trade as the prima facie consequence was innocuous while gains in cash and kind may be colossal without any possibility of loss of membership of the parliament for life, the reference noted.

A truly democratic polity would forever remain an unfilled distant dream and ambition unless this menace was timely and forcefully rooted out, it argued.

The constitutional objective of eradicating the cancer of defection and horse-trading could be redeemed by a robust and purposive interpretation of the provisions of the Constitution, particularly Articles 17, 62 and 63-A, according to the presidential reference.

Being the backbone in a parliamentary form of government, political parties were ultimately accountable to the people through elections in accordance with the provisions of the Constitution, it argued, adding that the voters evaluated candidates on the basis of their party and rarely on individual credentials while choosing their representatives in the assemblies. Such cases were exceptional where independent candidates outvote all other candidates, including those contesting on party tickets, it pointed out.

The reference asked the court to answer all those questions of law so as to purify and strengthen the democratic process, worthy of people’s respect and trust, and forever eradicate the menace of defections.

Published in Dawn, March 22nd, 2022