ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial on Wednesday observed that the Supreme Court intervenes to rescue the Constitution and make the living document effective when the system cannot defend it.

“We cannot attribute redundancy to the provision relating to defection i.e. Article 63-A of the Constitution,” observed the CJP but observed at the fag end of Wednesday’s hearing while pointing towards counsel for the Pakistan Muslim League-Nawaz Makhdoom Ali Khan that such things should be done through political process.

At the outset of the proceedings, Justice Jamal Khan Mandokhel wondered if the president could seek opinion by invoking advisory jurisdiction on the National Assembly proceedings and if the NA was bound by such opinion and whether the president would invoke the advisory jurisdiction on the advice of the prime minister or the cabinet instead of acting on his own.

Justice Mandokhel also wondered if the member be disqualified for life without any remedy on the single declaration by the party head when the lawmaker was declared defector on the certificate issued by the party leader. He also questioned if the president had certain substance that something wrong was going to happen at a time when the process for the no-confidence motion had commenced.

During the hearing, Justice Mazhar Alam Khan Miankhel handed over a single-page document to the counsel and wondered if such directions could be issued by party heads. Apparently, the document was about the directions issued to PTI members to abstain from the vote of no-confidence motion.

After recess when the court resumed, Attorney General for Pakistan Khalid Jawed Khan requested the court that he should also have the privilege to see the copy of the document. At this, the CJP asked the AGP to leave the matter and suggested the PML-N counsel to return the letter.

Justice Mandokhel observed it was the court concern that the government may made some move on the pretext of the present hearing.

The PML-N counsel observed that the SC should not read Article 62(1)(f) of the Constitution, which asks for lifetime bar, into Article 63-A since the provision provides the consequences of defection. He also questioned if the president by invoking Article 186 of the Constitution could substitute the textual consequence of the provision by seeking for disqualification for life of the members in disregard of the directives of the parliamentary party head by not casting his vote.

The counsel contended that not every legal question needed to be answered by the apex court since sometimes it was for the electorate to decide, but by seeking opinion of the apex court on vague and general suggestions, means taking the Supreme Court to the realm away from the advisory jurisdiction but on legislation and might result in the rewriting of the Constitution.

The CJP observed that the advisory jurisdiction should be invoked when the society or the nation was not on the thick of a situation especially when the interpretation of Article 63-A by court would have certain implication in one way or the other.

Published in Dawn, March 31st, 2022