The Supreme Court formed on Monday a five-member larger bench on a presidential reference seeking its opinion on Article 63-A of the Constitution, which deals with the disqualification of parliamentarians over defection.

Names of the judges who will constitute the bench are yet to be finalised.

The reference was submitted by Attorney General of Pakistan (AGP) Khalid Jawed Khan earlier today.

A two-judge bench, comprising Chief Justice of Pakistan Umar Ata Bandial and Justice Munib Akhtar, took up the reference along with a plea filed by the Supreme Court Bar Association (SCBA) seeking the top court's intervention to prevent "anarchy" ahead of the no-trust vote.

At the hearing, the court said a political party that wanted to become a respondent in the reference may file an application.

The court adjourned the hearing till March 24.

The reference

The reference, a copy of which is available with Dawn.com, presents two interpretations of Article 63-A and requests the court to advise which of them should be followed.

According to the first interpretation, "khiyanat (dishonesty) by way of defections warrants no pre-emptive action save de-seating the member as per the prescribed procedure with no further restriction or curbs from seeking election afresh."

While the second interpretation "visualises this provision as prophylactic, enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralising the effects of vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct."

The development comes days after several PTI lawmakers, who had been 'in hiding' at the Sindh House in Islamabad, revealed themselves — proving that the opposition's claims of having "won over" members of the ruling coalition were indeed true.

Prime Minister Imran Khan and some cabinet ministers had earlier accused the opposition of indulging in horse-trading ahead of the crucial vote on the no-confidence resolution, disclosing that the capital's Sindh House had become a centre for buying and purchasing members.

But while government members continued to claim that these dissidents had "sold their souls for money", a number of TV channels that sent their teams into Sindh House to verify the claims were faced with nearly a dozen PTI members, who claimed that they had developed differences with the Imran Khan-led government and were going to vote in "accordance with their conscience".

Subsequently, the government had decided to file a presidential reference for the interpretation of Article 63-A with Information Minister Fawad Chaudhry saying the top court would be asked 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.

"What other measures and steps can be undertaken within the existing constitutional and legal framework to curb, deter and eradicate the cancerous practice of defection, floor crossing and vote-buying?" the reference further asks.

"As happened on many occasions in past, the stage is yet again set for switching of political loyalties for all sorts of illegal and mala fide considerations including vote-buying which by its very nature rarely leave admissible or traceable evidence," the reference states.

It adds that some of the "presently defecting [MNAs] have even publicly admitted to defection in interviews to the media with evident pride and further commitment to stay engaged in this immoral trade".

It cautions 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."

Read: Can Article 63-A be invoked before no-trust vote?

The SCBA petition

The Supreme Court had last week taken up a petition moved by the Supreme Court Bar Association — an apex legal forum — instituted to seek a restraining order against the government's "intentions" of preventing the parliamentarians from taking part in the no-trust motion against Prime Minister Imran Khan.

The petition had also referred to the government and opposition's plans of holding rallies simultaneously in Islamabad and feared that this may result in an "anarchic situation" ahead of the no-trust vote.

During the hearing, the attorney general apprised the apex court that the federal government was filing a reference under Article 186 of the Constitution, seeking delineation of the scope and meaning of certain provisions contained in Article 63-A of the Constitution.

The CJP, however, observed that the court would take up the matter only when it came before the court, but regretted that whatever happened on Friday — referring to the attack on Sindh House — was "beyond the right of freedom of expression and lawful protest".

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".

The government has already indicated that it will use Article 63-A to "crush" the no-confidence motion against PM Imran.

Last week, Adviser to Prime Minister on Parliamentary Affairs Dr Babar Awan had said that the intent of Article 63-A of the Constitution was to not allow lawmakers, who got the public's votes and were elected in the name of the party leadership, to cross floor. "We will crush the no-confidence motion through the Constitution and the law," he had claimed.

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