ISLAMABAD: Justice Ijaz-ul-Ahsan on Tuesday disapproved of the practice of an “open sale and purchase of votes” as it often resulted in the fall of elected governments.

“A democracy can ill-afford such tendencies,” observed Justice Ahsan, a member of the five-judge Supreme Court bench hearing the presidential reference seeking interpretation of Article 63A of the Constitution, which deals with defection.

The apex court judge said the sale and purchase must be curbed as it had consequences for the lives of 220 million people.

The observation came when Advocate Azhar Siddique, who represents PML-Q, expressed fears that if horse-trading were not discouraged, inimical forces could conspire to remove any government through blocking passage of annual budgets in parliament after buying votes.

Justice Miankhel wonders if defection is a bigger crime than working against country’s integrity, ideology

Justice Ahsan observed that nobody should be allowed to benefit from unjust enrichment or to reap the fruits of a forbidden tree since the fruit, in case of defection, was the fall of the government.

Justice Jamal Khan Mandokhel wondered if someone indulged in selling of his vote, who had prevented the parliamentary head from referring the defection cases, especially when a proper mechanism had been provided in the shape of the National Accountability Ordinance (NAO). The NAO provides for 14 years in jail and 10 years of disqualification on corruption.

Justice Mandokhel said whether a conscientious member should be punished for committing corruption if he decided to switch sides because he did not approve of party decisions on major national issues.

When Advocate Babar Awan was arguing in favour of life-time disqualification for legislators after defection, Justice Mazhar Alam Miankhel wondered whether defection under Article 63A of the Constitution was a bigger crime than Article 62(1)(g) which prescribed a disqualification of five years only.

“In my opinion, allegation under Article 62(1)(g) is a more serious offence than Article 63A of the Constitution.”

The counsel emphasised that there was a purpose behind inserting Article 63A and considered it a big wrong, but it needed declaration by the party head.

Babar Awan argued that the restrictions imposed by the Constitution regarding the candidature of a member in Articles 62 (qualifications) and Article 63 (disqualifications) and 63A (defection) serves the public need and interest, adding the framers of the Constitution had deliberately decided not to provide for a definitive period in case of disqualification under Article 63A.

It means that whatever the Supreme Court had held in the 2018 Samiullah Baloch case asking for life-time ban would apply.

He emphasised that disqualification under Article 62(1)(f), which proposed disqualification for life, was incurable and by not implying life-time disqualification would mean injustice to Article 63A.

The counsel argued that the menace of defection should be blocked so that it should lose attraction and no one should dare to sell his vote.

When Justice Mandokhel wondered could the Supreme Court enhance the punishment for defection in the Constitution as prescribed by Article 63A, the counsel reminded the court that the Supreme Court had allowed Gen Musharraf in the Zafar Ali Shah case of 2000 not only to rule for three years but also to amend the Constitution.

At this Justice Mandokhel observed that one should correct himself and the lesson one should learn was “enough is enough”.

The counsel asked why the Supreme Court delivered judgeents which could not be followed or implemented or relied upon.

Justice Mandokhel said someone had once observed that “we need an independent judiciary, but instead we need to have judiciary or government or executive which should be subservient to the Constitution”.

Babar Awan emphasised that “we need to highlight the preamble and Objectives Resolution, saying when you say that the entire nation was looking towards the Supreme Court, then justice must also seem to have been done”.

Referring to Azhar Siddique, the court asked the counsel to convince it why the vote of the perceived defector should not be counted, especially when Article 63A prescribed a mechanism before declaring someone to have defected.

Published in Dawn, May 11th, 2022