Supreme Court Justice Ijazul Ahsan observed on Monday that "a few lawmakers switching loyalties to change a government at any time is a joke".

He made the observation during the hearing on a presidential reference seeking the top court's opinion on the interpretation of Article 63-A, which is related to the disqualification of parliamentarians over defection.

A five-member larger 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, is hearing the petition. The reference was submitted by the Attorney General of Pakistan (AGP) Khalid Jawed Khan on March 21.

During the hearing today, the chief justice observed that even if a member was de-seated and the no-confidence motion against the prime minister was unsuccessful, the ruling party "still loses the majority".

Attorney General of Pakistan (AGP) Khalid Jawed Khan replied that there was a separate procedure if that was the case.

Justice Akhtar observed that the article related to lifetime disqualification was applicable when a member hid information in his nomination papers, questioning how a lawmaker could be disqualified for life without misconduct proceedings being initiated against him.

Earlier during the hearing, AGP Khan referred to a Supreme Court verdict from 2018 in which the SC had asked all candidates to submit an affidavit along with nomination papers.

The court had declared that nomination papers without the affidavit would be incomplete, he said, adding: "In the law, there was no requirement of an affidavit. It was submitted on orders of the court."

The court had said in the verdict that the move was aimed at ensuring transparency in the election process, the AGP informed the bench.

Justice Mandokhail asked the attorney general whether he believed there was something "missing" in Article 63-A, to which he replied that the article in question could not be read alone.

The chief justice observed that the Supreme Court's 2018 verdict — earlier mentioned by the attorney general — talked about the credibility and sanctity of the elections.

"A five-member Supreme Court bench had referred to Articles 62 and 63 to maintain transparency," the AGP said, reiterating that members of political parties were bound by party discipline.

'How can Article 63-A be linked to life disqualification?'

At this, Justice Ahsan observed that Article 63-A was related to de-seating, questioning how it could be linked with lifetime disqualification.

Different forums were available to take action against those who changed loyalties, he noted, observing that linking Article 63-A to lifetime disqualification was "merely a hypothesis".

For his part, the AGP argued that the lifetime disqualification clause was applicable where mala fide intention was involved. Justice Ahsan remarked that the question was what dishonesty was committed and against whom.

"There are three players in the entire process — the voter, the party and the member who is elected. The member who wins on the party's ticket promises to follow the party's mandate," the AGP said.

Here, Justice Mandokhail questioned whether there was a punishment for resigning, to which the AGP responded that the "problem was no one was resigning".

The judge cautioned the attorney general to limit his arguments to the presidential reference the court was hearing. "Don't tangle the Supreme Court in politics," he warned.

"Is de-seating under Article 63-A not enough?" he asked.

Dissident members 'will have to face consequences'

The chief justice remarked that members "will have to face the consequences of violating the party policy". He observed that Article 63-A states that the parliamentary membership of the MNA will be terminated.

"You want to determine the period of disqualification," Justice Bandial said. Disqualification under Article 62 (i)(f) required a verdict, he observed, questioning whether an MNA could be disqualified for up to five years under Article 63-A.

Justice Ahsan, however, asked how Articles 63-A and 62 (i)(f) could be linked. "Isn't it necessary to prove taking bribes on a forum?" he inquired and then observed that Article 62 (i)(f) is applicable on taking bribes.

AGP Khan argued that violation of Article 63-A was "legally mala fide".

The chief justice asked the AGP whether a lawmaker could be disqualified for three years or five years under Article 63-A or if it was temporary. "Are you seeking lifetime disqualification for political dishonesty?"

Meanwhile, Justice Akhtar observed that both the constitutional provision of lifetime disqualification and Article 63 were different.

He remarked that lifetime disqualification is related to false information and statements in nomination papers. "Action against a dissident member is a matter for after election."

Justice Akhtar pointed out that the verdict the AGP was referring to was related to pre-election matters, asking how it could be applied post-election.

Election laws could not be above the Constitution, AGP Khan argued.

"The Election Commission of Pakistan (ECP) is present to take action against a dissident member," Justice Mandokhail noted.

He further said the ECP should be allowed to decide the matter once the party's head submitted a declaration. "When the procedure had been clarified in the law, what do you want? Perhaps some people's conscience may truly have been awakened. If the Election Commission's decision is [challenged] in the Supreme Court, then we will see.

Subsequently, Justice Miankhel questioned how the length of disqualification would be decided.

Meanwhile, Justice Akhtar said the matter was "very complex" and the entire constitutional framework would have to be evaluated.

The chief justice questioned how the prime minister could take a vote of confidence from the parliament if 15 to 20 lawmakers were de-seated. "Can the prime minister stay even with a [reduced] majority?"

The attorney general replied that the president could direct the prime minister to take a vote of confidence.

Justice Mandokhail said if the demand for action against dissident lawmakers was not made by all political parties, then the matter should be resolved in parliament.

PM's speech

During the hearing, the SC expressed its reservations on Prime Minister Imran Khan's speech in Punjab's Kamalia on March 26.

In his speech, the prime minister had said that if former prime minister Nawaz Sharif returns to the country, he will divide the judiciary — in fact he has already started doing it and signs are visible in the judiciary. But his target, as always, would be the army. He has not been able to work with the military, the premier had added.

"Today, there's a session of the [National] Assembly. Our questions are discussed at times. The prime minister said in his rally in Kamalia that someone is getting the judiciary on his side. What kind of statements are being printed in the newspapers?" Justice Miankhel asked during today's hearing.

The chief justice remarked that the court has nothing to do with what is happening outside.

Justice Miankhel, however, asked about the consequences of PM Imran's lack of confidence in the county's "biggest institution".

The CJP replied that the court was not affected by discussions on social media.

The attorney general informed the court that newspapers had published stories that Justice Ahsan had said the reference should be sent back. However, Justice Ahsan said he had observed that there was "an option to send the reference back".

The attorney general said the reference did not ask any questions related to the procedure, instead, the question was about the length of the disqualification and whether the dissident MNA's vote would be counted.

'Why did politicians not decide?'

Returning to the matter of the reference, Justice Miankhel questioned how the government would decide the length of disqualification. The attorney general responded that this was why the government had approached the apex court.

"Don't you think the interpretation of Article 63-A is very clear? Don't you think interpretation on the questions raised in the presidential reference is not needed?" Justice Miankhel asked.

"Everyone is building castles in the air right now," remarked the chief justice. "The question is why politicians, who got the opportunity at different times, did not decide the length of disqualification of dissident members.

"Politicians had clear majority since 1997. Why was the length of disqualification not decided then? Democracy is an important part of our Constitution. The parliament is supreme," Chief Justice Bandial said, adding, "this case is very interesting."

Meanwhile, PML-N's lawyer Makhdoom Ali Khan contended that it was "not possible all people on the government's side were transparent while all people on the opposition's side were corrupt".

"Save the party or save the government, the question is what is beneficial for the public," observed Justice Mandokhail.

Subsequently, the hearing was adjourned till tomorrow.

The reference

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 comes 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."

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".

The government has already indicated that it will use Article 63-A to "crush" the no-confidence motion against PM Imran.

Adviser to Prime Minister on Parliamentary Affairs Dr Babar Awan had said that the intent of Article 63-A of the Constitution was to not allow lawmakers, who got the public's votes and were elected in the name of the party leadership, to cross floor. "We will crush the no-confidence motion through the Constitution and the law," he had claimed.