ISLAMABAD: Just days from retirement, Supreme Court Justice Mazhar Alam Khan Miankhel observed on Thursday that only the makers of the Constitution could remove the “cancerous tumour of defection through a surgical operation”.

“I may agree to [a] certain extent (that the defection/horse trading is a cancer and we have to eradicate the same by curbing it with an iron hand), but this menace could not be curbed by the stroke of my pen,” observed Justice Miankhel in a 17-page dissenting note on interpreting Article 63-A of the Constitution.

On May 17, the Supreme Court by a majority of three to two held on the presidential reference that Article 63-A which deals with defections, ensures fundamental rights of the parliamentary party than the individual member; therefore, the vote polled contrary to the party lines should not be counted.

Justice Miankhel — one of the two judges who dissented with the verdict — observed that he kept on waiting for the majority judgement, but decided to issue his note since he was to achieve superannuation on July 13.

In note of dissent on Article 63-A reference, Justice Miankhel says court not authorised to alter language of statute

Justice Miankhel observed that Article 63-A, despite the 18th Amendment, was still present in the Constitution since the legislature never deemed it appropriate to go for further changes and amendments.

Justice Miankhel explained that all the questions referred to the Supreme Court through the presidential reference were of the type that an answer to any question in the affirmative would lead the apex court to exceed and overstep its domain. This, in other words would mean that the apex court would be putting something new in the text of the article, which was not even the mandate of the Constitution, he added.

Article 63-A ‘hardly needs interpretation’

“The entire provision of Article 63-A is very plain and simple and I find nothing which could hardly need any interpretation other than what its language provides,” Jus­tice Miankhel observed, adding that in his view the provision was a complete code in itself and provides a comprehensive procedure regarding defection of a member of parliament.

It does not admit interpretation and as such the questions asked through the presidential reference are answered in negative, Justice Miankhel said and added that if parliament deemed fit, it can impose further bar or restriction on the defectors.

Article 63-A itself provides penal consequences for defection and a penal provision should be construed strictly and its scope should not be extended, Justice Miankhel said.

If blunders are found in legislation, they must be corrected by the legislature, but it is not the function of the court to repair them, Justice Miankhel emphasised. He added that as a general rule a court of law was not authorised to alter the language of a statute for the purpose of supplying a meaning.

The purpose of the interpretation of a statutory provision is no doubt to ascertain the true intention of the legislature, yet that intention has to be gathered from the words used by the legislature itself, he said, adding that the function of the court is interpretation, not legislation.

“I am of the considered view that Article 63-A does not prohibit any member of a House from violating the direction issued by a parliamentary party to which he belongs,” Justice Miankhel underscored. “All what Article 63-A prescribes was that when such a direction was violated by a member he incurs disqualification for continuing as a member of the House,” the judge added.

Undoubtedly, the object, sought to be achieved by Article 63-A, is to ensure loyalty of the members to a political party, which sponsored the candidature of the member at the election, he observed.

‘Balancing act’

The parliament could have declared that an act of voting should also be ignored for the purpose of deciding the issue on which the voting took place, but it did not, he added. It is, thus, a balancing act between the party discipline and the convictions of individual members, Justice Miankhel remarked and added the Constitution does not contemplate any step of ignoring the vote given in violation of the party direction.

“The argument that there is a vacuum which necessitates interference of the Supreme Court is untenable as the provisions of Article 63-A are simple, clear and unambiguous,” he said and added that strict adherence to the words of the Constitution “is the rule”.

“Any effort to supply perceived omissions in the Constitution being subjective could have disastrous consequences,” he added.

Published in Dawn, July 8th, 2022