Justice Jamal Khan Mandokhail, who is a part of a five-member Supreme Court bench hearing a presidential reference seeking its interpretation of Article 63-A, on Tuesday wondered why voting [on a no-confidence motion] against the prime minister was not banned entirely if the defection of lawmakers was "such a big crime".

He also asked whether the Election Commission of Pakistan (ECP) could dismiss a reference against defecting lawmakers, observing that there would be a misuse of power where there was an excess of authority.

The five-member bench hearing the presidential reference — filed by the PTI government before its ouster — is headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprises Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Mandokhail.

During the hearing today, PPP's lawyer Farooq H Naek argued that the 17th constitutional amendment gave the prime minister and party chiefs immense powers. "Even the Supreme Court cannot take action against the prime minister."

Chief Justice Bandial observed that if a no-trust motion was submitted against the premier in the fourth year of his tenure and a reference against defecting legislators was simultaneously filed with the ECP and it then takes a year for them to announce decisions, no action would be possible against those lawmakers as by that time the National Assembly would have completed its tenure.

Naek responded that the ECP was bound to announce its decision on a reference for ineligibility within a stipulated time frame.

At this, Justice Mandokhail interjected that the top court was also bound to decide the case within a specific period of time.

The chief justice remarked that Article 63-A's purpose was to disqualify a defecting lawmaker, to which Naek said the Article in question also did not mean the "hanging" of a defected member.

"No argument has been presented on lifetime disqualification of defectors," the PPP's counsel said.

Justice Ahsan observed that the purpose of Article 63-A was to prevent defection from the party, "However, it remains to be seen whether the punishment for switching parties is strong enough to shake the conscience of a lawmaker concerned."

He noted that it had to be decided whether defection was right or wrong in the first place.

"History tells us that defection doesn't only take place because one's conscience is awakened," Justice Ahsan said, adding "what will be the punishment for defection is the question."

Naek contended that the defecting lawmaker would be disqualified only until the completion of the remaining term of the government.

Justice Mandokhail asked Naek whether he was accepting that defection was a crime. "If it is a crime, then why is the vote of a criminal counted?" he questioned.

The chief justice observed that the court had given its verdict in the Senate election case, but no one followed it. "Why is a political party neutral on the defection of lawmakers?" the top judge asked.

He expressed surprise that a person leaving a party was given a position elsewhere.

Justice Ahsan cited an observation of an American judge, saying people in the US would not vote for a person who went against the court orders.

Naek told the bench that the country was heading towards anarchy as "no one is willing to adhere to the court orders".

The CJP remarked that the situation was not bad enough to avoid discussions on a general matter.

The hearing was subsequently adjourned till Wednesday.

Presidential reference on Article 63-A

Before its ouster, the PTI government had filed a presidential reference for the interpretation of Article 63-A, asking the top court 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. It cautioned 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 reference had been filed at a time when the then-opposition claimed the support of several dissident PTI lawmakers ahead of voting on the no-confidence resolution against then-prime minister Khan.

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".