ISLAMABAD: As the government intends to seek Supreme Court’s interpretation of Article 63-A of the Constitution to ascertain if it is applicable to members only after defection or a political party chief can invoke it to discourage perceived horse-trading, one of the key questions is about penalty.

Will the defection entail simple disqualification for five years or perpetual for all times to come, similar to the punishment suggested by Article 62(1)(f) of the Constitution in the 2018 Sami Ullah Baloch case?

Article 63-A suggests disqualification on grounds of defection for not obeying the parliamentary party directions in the election of the prime minister, chief minister or vote of confidence or no confidence or money bill etc.

The government’s plan to file a presidential reference was made public by Minister for Information and Broadcasting Fawad Chaudhry through a tweet before Foreign Minister Shah Mahmood Qureshi formally announced the decision of approaching the top court at a press conference.

The reference will be moved by Attorney General for Pakistan (AGP) Khalid Jawed Khan on behalf of President Dr Arif Alvi before the Supreme Court under its advisory jurisdiction by invoking Article 186 of the Constitution.

The AGP, who is drafting the reference, told Dawn that he would try his level best that the reference should be moved before the apex court positively by Saturday (today) or the most by Monday (March 21). “We will also request the Supreme Court for early fixation of the matter and its decision as early as possible by holding day-to-day hearings,” he said.

Previously, the AGP was also instrumental in filing of the reference before the Supreme Court to seek its opinion on the matter of open ballot for Senate elections. The court was asked if the condition of secret ballot under Article 226 of the Constitution applies to the Senate elections or not.

The need to seek interpretation of Article 63-A arises from the fact that the provision is silent and did not offer much on the subject and therefore open to misuse, according to Mr Khan. He said the question attained significance when a number of lawmakers belonging to the ruling Pakistan Tehreek-i-Insaf were allegedly staying at the Sindh House in the heart of the capital city. As the opposition claims they have won the support of members of the ruling coalition, the government accused the opposition of indulging in horse-trading ahead of the crucial vote on the no-confidence resolution against the prime minister.

However, a senior counsel on condition of anonymity questioned how one could prove that the members staying at the Sindh House had decided to sell their vote for money from the opposition.

Former president of the Sindh High Court Bar Association Salahuddin Ahmed said the Constitution was very clear that defection entailing disqualification could be applied only once a member votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs in relations to no-confidence motion and not before any such move.

Had it been the intention of the Constitution [to invoke the defection clause before any such move by any member], the legislature could have incorporated it in Article 63-A of the Constitution in clear terms.

He said President Alvi had the right to move a reference to the SC to ask its opinion on any question of law but it was court’s discretion whether to give its opinion or not. The SHCBA president was of the opinion that it was unfortunate that the reference was being sent to the apex court in a politically charged environment despite the crystal clear wording of the law (Article 63A).

He explained that all parliamentarians had the right to cast vote and have their vote counted. Any disqualification proceedings could only start subsequent to that, he said. Even on the previous occasion when the president had sent a reference to the apex court regarding secrecy of balloting in the Senate elections, the law was crystal clear, he added.

Ultimately, this was a political challenge being faced by the government, the SHCBA president said, adding that it should tackle it politically rather than expecting the judiciary or any other institution to bail it out.

However, the AGP substantiated his point by citing an example of a police constable if someone is trying to kill his adversary in front of him. Should a policeman remain a silent spectator and wait until the murder is committed so that he could conveniently register an FIR or should he try to prevent the heinous crime before it happens?

The attorney general said same was the case with the ruling party lawmakers. It had become an open secret that some members of the ruling party had allegedly “sold their souls for money”, he said.

The AGP said: “Should we wait until they defy party lines or do something to prevent the tendency of horse-trading?” He said the present situation was similar to the 1989 Changa Manga episode when a no-confidence motion had been moved against former prime minister Benzair Bhutto.

In the present polarised atmosphere, it was not possible to take up the matter at the parliament and find out a solution, the AGP argued. Likewise, he claimed, the Election Commission of Pakistan (ECP) in this scenario seemed helpless to offer any solution. Therefore, the Supreme Court seemed to be the only forum left to seek a solution instead of deciding the matter in streets, he said.

While Article 63-A does not offer much help, it could not be the scheme of the Constitution to encourage the menace of horse-trading, the AGP emphasized, also stating that the most honourable way would be that the members instead of switching sides, tender resignation from their seats and win the elections again from the party they wanted to join.

Published in Dawn, March 19th, 2022