Chief Justice of Pakistan Umar Ata Bandial will head the five-member larger bench comprised by the Supreme Court to hear the presidential reference seeking its opinion on Article 63-A of the Constitution — which deals with the disqualification of parliamentarians over defection — according to the supplementary cause list issued by the apex's court assistant registrar on Tuesday.

The bench will also include Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail.

The same bench will also hear a petition filed by the Supreme Court Bar Association (SCBA), which has sought the apex court's intervention to prevent "anarchy" by directing all state functionaries to act in accordance with the Constitution and law ahead of voting on a no-trust motion against Prime Minister Imran Khan.

According to the supplementary cause list, the hearing for the presidential reference and the SCBA's petition would be held at 1pm on Thursday (March 24).

Notices for the hearing have been issued to Pakistan Tehreek-i-Insaf's lawyer Ali Zafar, PPP's lawyer Farooq H Naek, PML-N's lawyer Makhdoom Ali Khan and Jamiat Ulema-i-Islam-Fazl's lawyer Kamran Murtaza, as well as the advocate general for Sindh, Islamabad inspector general of police, interior secretary and president of the SCBA, among others.

The development comes a day after a two-member bench of the top court, comprising CJP Bandial and Justice Akhtar, took up the presidential reference and the SCBA's plea.

While the court had declared on Monday that a larger bench would hear the presidential reference, the names of the judges constituting the bench were not finalised at the time.

The reference

Attorney General of Pakistan (AGP) Khalid Jawed Khan had submitted the reference seeking the SC's opinion on Article 63-A of the Constitution yesterday.

The reference, a copy of which is available with Dawn.com, presents two interpretations of Article 63-A and requests the court to advise which of them should be followed.

According to the first interpretation, "khiyanat (dishonesty) by way of defections warrants no pre-emptive action save de-seating the member as per the prescribed procedure with no further restriction or curbs from seeking election afresh."

While the second interpretation "visualises this provision as prophylactic, enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralising the effects of vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct."

The development came days after several PTI lawmakers, who had been 'in hiding' at the Sindh House in Islamabad, revealed themselves — proving that the opposition's claims of having "won over" members of the ruling coalition were indeed true.

Prime Minister Imran Khan and some cabinet ministers had earlier accused the opposition of indulging in horse-trading ahead of the crucial vote on the no-confidence resolution, disclosing that the capital's Sindh House had become a centre for buying and purchasing members.

But while government members continued to claim that these dissidents had "sold their souls for money", a number of TV channels that sent their teams into Sindh House to verify the claims were faced with nearly a dozen PTI members, who claimed that they had developed differences with the Imran Khan-led government and were going to vote in "accordance with their conscience".

Subsequently, the government had decided to file a presidential reference for the interpretation of Article 63-A with Information Minister Fawad Chaudhry saying the top court would be asked 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.

"What other measures and steps can 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 reference further asks.

"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," the reference states.

It adds that some of the "presently defecting [MNAs] have even publicly admitted to defection in interviews to the media with evident pride and further commitment to stay engaged in this immoral trade".

It cautions 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 SCBA petition

The Supreme Court had last week taken up the petition moved by the SCBA — an apex legal forum — instituted to seek a restraining order against the government's "intentions" of preventing the parliamentarians from taking part in the no-trust motion against Prime Minister Imran Khan.

The petition had also referred to the government and opposition's plans of holding rallies simultaneously in Islamabad and feared that this may result in an "anarchic situation" ahead of the no-trust vote.

At the hearing on Monday, Justice Akhtar had observed that after joining a political party, a lawmaker's individual vote during no-confidence proceedings was considered a "collective right".

He had said that according to Article 95(ii) of the Constitution, which deals with the procedure to bring in a no-confidence motion against the prime minister, a member's individual vote had "no status", adding that the court had previously made similar observations in cases related to former prime ministers Benazir Bhutto and Nawaz Sharif.

Justice Bandial had said that the SC had to decide matters in accordance with the law and the Constitution and that the court had not yet been "convinced to interfere in the assembly's proceedings".

All the points raised in court could be taken to the NA speaker, he had observed.

Chief Justice Bandial had said political parties should show their power in parliament, observing that the police could not "raise a hand" on any lawmaker. However, "if MNAs break the law, police will take action," he had added.

"The court will play the role of mediator between the political parties to ensure democracy stays intact," the CJP had said.

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".

Debate surrounding Article 63 (A)

On Friday, Minister for Information Fawad Chaudhry said the government would file a reference in the Supreme Court, asking it to interpret Article 63 (A) of the Constitution to ascertain "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".

Chaudhry said the Supreme Court would also be asked for advice on whether those who change their party loyalties for financial reasons would be disqualified for life or allowed to contest elections again.

The government maintains that the intent of Article 63 (A) of the Constitution is to not allow anyone to cross the floor who got the vote in the name of party leadership and hence, it permits the disqualification of defecting lawmakers from the NA prior to them voting on the no-trust motion.

Some legal experts, however, disagree.

Former president of the Sindh High Court Bar Association Salahuddin Ahmed told Dawn the Constitution was very clear that defection entailing disqualification could be applied only once a member votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs in relations to no-confidence motion and not before any such move.

Had it been the intention of the Constitution to invoke the defection clause before any such move by any member, the legislature could have incorporated it in Article 63-A of the Constitution in clear terms, he said.

Similarly, lawyer Reema Omer earlier tweeted that Article 63-A was being "twisted" by some of her colleagues to argue that the party head could declare the dissident MNAs had defected even before the voting takes place so the NA speaker could then disregard their votes.

She argued that "such interpretation is disingenuous, desperate, and clearly against text of relevant laws + SC judgments".

Her assessment was similar to that of Pakistan Institute of Legislative Development and Transparency (Pildat) President Ahmed Bilal Mehboob's. He said there is no way a member can be disqualified before a no-confidence vote has taken place.

“They can’t stop them nor can they disqualify them. The action against defection has been very clearly defined in Article 63A,” he said.