Chief Justice of Pakistan Justice Umar Ata Bandial Wednesday observed that while defection was a ‘serious menace’ in parliamentary politics, banning a dissident lawmaker for life would be a ‘severe punishment’. He made these remarks while heading a five-member bench that resumed hearing the presidential reference seeking the apex court’s interpretation of Article 63-A of the Constitution related to disqualification of lawmakers over defection. The bench comprised Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail as members. “For the progress of the country, a stable government is needed,” the chief justice said, adding that “the [game of] musical chairs that has been taking place for power since the 1970s must end.” Justice Bandial said while the court cannot amend the law, it can also not allow anyone to “become the beneficiary of detrimental measures”. Justice Ijazul Ahsan said one way of dealing with defection could be de-seating but wondered what another punishment to go with it could be.
He said the duration of disqualification was not mentioned in Article 63-A, and questioned if the said article can be read with some other one.
“The question is that what would be the procedure of defecting lawmakers’ disqualification?” Justice Jamal Khan Mandokhel asked.
“If the allegation of accepting bribes has been leveled, what would its evidence be?” Justice Ahsan remarked that defection in itself is a constitutional crime. “If elections are held as per law then these things would end.”
Justice Ahsan asked advocate Mansoor Awan, the counsel of the Supreme Court Bar Association (SCBA), if defecting from the party was an acceptable practice in his opinion, says a news report.
“De-seating is appropriate for whoever defects on the basis of their conscience, but those who defected in return of monetary benefits must be given severe punishment” the SCBA counsel replied. At this, Justice Muneeb Akhtar remarked that those acting on their conscience must resign instead of defecting. “I will not use the word that is used by the public for those defecting.”
PML-Q counsel Advocate Azhar Siddique told the court the purpose of Article 63-A was to restrain lawmakers from defection, adding that a constitutional amendment was also made to prevent the practice.
He recalled that PTI lawmakers violated the party policy on April 16 and voted in favour of Hamza Shehbaz for his election as Punjab Chief Minister, [in the Punjab Assembly].
The chief Justice remarked that the court could not comment on the disqualification reference [taken up] by the Election Commission of Pakistan. “The matter pertaining to defected lawmakers is pending with the ECP.”
Siddique responded that his case did not relate to disqualification and that it was instead about “the theft of mandate in a broad daylight”.
Justice Mazhar Alam Miankhel said the matter had to be analysed by the ECP, adding an appeal against the decision of the election commission would eventually land in the apex court. Advocate Siddique informed the court that the word “disqualification” instead of “de-seating” was used in India for defected lawmakers.
Meanwhile, CJP Bandial remarked that a resolution for the no-confidence motion was tabled in the parliament on March 28, noting that debate should have been held on the reasons for presenting the motion on March 31.
“We have to protect the Constitution and that is the reason we are hearing the reference for the interpretation of Article 63-A.” Justice Akhtar said Article 63-A could be read together with Article 17(2), which pertains to freedom of association and underlines that political parties have rights under it.
Article 17(2) reads: “Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within 15 days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.”
