Chief Justice of Pakistan (CJP) Umar Ata Bandial on Thursday observed that not counting a vote that has been cast during the no-trust proceedings against the prime minister would be "contemptuous", adding that the real question was how long a dissident MNA could be disqualified for.
Article 63-A laid out the procedure for the disqualification of a parliamentarian over defection, he observed.
He made the remarks during the hearing of a presidential reference seeking the Supreme Court's opinion on Article 63-A of the Constitution. A five-member bench, comprising Justice Bandial, Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail heard the petition.
Notices for the hearing were issued to Pakistan Tehreek-i-Insaf's lawyer Ali Zafar, PPP's lawyer Farooq H Naek, PML-N's lawyer Makhdoom Ali Khan and Jamiat Ulema-i-Islam-Fazl's lawyer Kamran Murtaza, as well as the advocate general for Sindh, Islamabad inspector general of police, interior secretary and president of the Supreme Court Bar Association (SCBA), among others.
Earlier in the hearing, Justice Mandokhail questioned whether an MNA's vote could be counted in the proceedings conducted before his de-seating, observing that there was no mention of not counting a vote in the 18th Amendment.
At this, Attorney General of Pakistan (AGP) Khalid Jawed Khan said that members elected to the assembly were bound by party discipline.
The chief justice said that the "spirit of Article 63-A cannot be ignored". "It is not the court's job to fill in the blanks. Such matters should be resolved in the parliament rather than through a reference," he said.
Justice Bandial said the court also had to look at Article 55 related to quorum and voting in the NA.
'Party's collective opinion above individual opinion'
However, another member of the bench, Justice Akhtar, observed that the purpose of Article 63-A was to stop defection from party policies. "The party's collective opinion is above an individual's opinion," he said. "The collective opinion is important for the stability of democracy."
He said one interpretation of Article 63-A was that the vote of dissidents should not be counted.
Justice Akhtar further said the Constitution empowered the parliamentary party, and not the party's leader.
Meanwhile, Justice Alam said nobody could be forced to cast their vote.
Justice Mandokhail recalled that Balochistan Assembly members had brought a no-confidence resolution against their own party's government.
At this, AGP Khan said that in that case both the opposing groups were from the Balochistan Awami Party (BAP). "Joining hands with the opposition is not the voice of conscience. If [dissident MNAs] are so conscientious, they can resign," he added.
Justice Mandokhail then questioned what would happen if an MNA "returned his seat", saying that a lawmaker also had a "vote separate from his party".
The chief justice, meanwhile, questioned the length of time an MNA could be disqualified for and when the process could begin. He also asked the AGP to argue on why the parliament could not settle every matter itself.
Real issue about clarity on Article 63-A: AGP
AGP Khan said the system could not work if every MNA acted on his own.
Justice Alam observed that according to Article 63-A(4), cancellation of a party's membership was tantamount to disqualification. The article concerned was "very clear", he said.
However, the attorney general argued that the real issue was about clarifying Article 63-A(4). "Someone who violates the Constitution by defection cannot be praised. We cannot read what's not written in the Constitution. Article 62(1)(f) states that an MNA should be honest and righteous.
"Should defecting from the party be rewarded? Can those who are dishonest be considered righteous?" he asked.
Justice Mandokhail replied that every MNA had the right to vote in accordance with Article 95, which deals with the procedure of bringing in a no-confidence motion against the prime minister.
"If vote can be cast, it can also be counted," he observed, asking the AGP why the government was seeking the court's opinion if it already had the answer. "If you agree with this point, then withdraw this reference," he added.
AGP Khan replied that Article 63-A would not be applicable without the MNA voting against party directives.
Justice Ahsan questioned the attorney general about the inquiry the Election Commission of Pakistan (ECP) would conduct based on the party head's declaration. "Will the ECP decide whether the [declaration of] defection from the party is correct or not? Will the ECP's work be limited to checking whether the procedure was followed?"
The AGP replied that defecting from a party could "not be correct".
Arguing on the reference at the outset of the hearing, AGP Khan referred to a 1992 verdict in which he said the Supreme Court had asked lawmakers to resign if they were "troubled by their conscience".
Justice Bandial pointed out that a lot had happened since then.
"A lot happened but loyalties were not exchanged in this manner," the attorney general responded. "Interviews of defected party members were aired on TV, and according to a decision of the Supreme Court in the past, if a member who has won the election on the party's manifesto changes their allegiance, they should resign."
The CJP said the verdict was from 1998, to which the AGP responded that he would argue on the basis of the constitutional framework.
Justice Mandokhel observed that Article 63-A was related to lawmakers' disqualification.
The AG said the party head could not issue a declaration in this regard as there were relevant forums for it.
'Members bound to follow party directives'
"Members are bound to follow party directives under Article 63-A of the Constitution," he told the court, adding that it was also applicable to voting on the prime minister's election and the no-confidence vote.
The Constitution contained the procedure for the disqualification of parliamentarians, he said, adding that Articles 62, 63 and 63-A could not be read separately.
The court had already declared the parliamentary system as the basic structure of the Constitution, the attorney general said.
Khan said political parties were the foundation of the party system. "The court had made an observation regarding deviation from party policy in the past."
He said the court had remarked if the members of the Muslim League had contested elections independently "then Pakistan would not have been formed".
He contended that Articles 62 and 63 were categorised in the same section of the Constitution, while Article 19 gave every person complete freedom of expression.
At this Justice Ahsan remarked that the attorney general was "in fact talking about the difference between the voting rights of a member of the assembly and a common man".
The AG responded that a vote cast by a member of the parliament could not be undone, adding that Article 17(2) encouraged voting on party lines rather than in an individual capacity.
"In the parliamentary system of governance, an individual political party's legislation has no importance."
However, Justice Mandokhail observed that the right to vote was granted to an individual and not to the party while Justice Akhtar remarked that "voting against the policy of a political party weakens it".
The chief justice remarked that observation given in a court decision was very important.
The AG said that the public's mandate was represented in the parliament in a collective form, adding that political parties legislated for them.
Justice Mandokhail said the right to vote was granted to parliamentarians and not party members.
Meanwhile, Justice Ahsan said Article 63-A had been introduced to to ensure discipline within the party.
'Not adhering to directives destroys the party'
Justice Akhtar observed that political parties were institutions that were weakened by disciplinary violations. "If the party line is not adhered to, the political party will be destroyed."
The attorney general, while agreeing with the judge's observation, said the Supreme Court had also previously adjudged that political parties were institutions.
Justice Akhtar added that the democratic system was weakened if the political party was not strong.
The attorney general said that despite the presidential system in the United States, a senator was not independent there.
"What is the difference between someone winning the election on a political party's ticket and an independent member of the National Assembly?" Justice Mandokhel asked.
The AG responded: "If the independent member does not accept the party's manifesto, he should resign. The ship cannot be changed after 2.5 years in a five-year assembly [tenure]."
"Are you asking us for life-time disqualification (of dissident MNAs)?" the CJP asked AGP Khan.
'Members going in different directions will cause chaos'
"The incumbent government had a very thin majority. Will [dissident MNAs] jump ship after drowning the first [party]?" Justice Ahsan asked.
Another member of the bench, Justice Akhtar observed that Article 63-A directed lawmakers to vote in accordance with party lines "without looking at good or evil".
"This is the real problem. The members going in different directions will cause chaos," he added.
Justice Mandokhail questioned whether the AGP wanted to make the party head equivalent to a king, which the attorney general denied but said the government did not want the party head to become a "turncoat" either.
The chief justice questioned whether a lawmaker had the right to decide against party lines. Justice Ahsan also asked whether the government could be toppled by jumping ship, remarking that "most democratic governments are formed by a majority of a few votes."
Justice Akhtar observed that even ordinary legislation would not be done if members continued to "jump" across party lines.
"If Pandora's box is opened, the game of musical chairs will continue," remarked Justice Ahsan.
The AGP contended that the matter was not limited to Article 63-A but to the "possible failure of the entire system".
"If everyone does what they want, the political party will become a crowd rather than an institution. Making individuals powerful destroys the institution," remarked Justice Akhtar.
Earlier during the hearing, the chief justice directed the provinces to submit their responses in connection with the presidential reference, saying it would be "easier" to conduct proceedings once the written replies were filed.
On Monday, a two-member bench of the apex court comprising CJP Bandial and Justice Akhtar took up the presidential reference and declared that a larger bench would hear the case.
Main questions in the reference
- Will "dishonest" MNAs be allowed to vote?
- Will the defecting members' vote be counted, given equal weightage?
- Will the defectors be disqualified for life?
- Measures that can be taken to prevent defection, floor crossing and vote-buying
Replies submitted to court
On Thursday, the SCBA submitted a written reply to the apex court ahead of today's hearing in accordance with the court's directives.
In its reply, the SCBA said that the votes of MNAs "cannot possibly be construed as a collective right of a political party", citing Article 95 of the Constitution, which deals with the procedure to bring in a no-confidence motion against the prime minister.
The association also said that Article 63-A, which deals with disqualification of a lawmaker over defection, cannot "control, restrict or limit the right of MNAs to participate in a vote of no-confidence against the prime minister".
It added that Article 63-A also does not restrict the right of MNAs to freely participate in proceedings.
"Any limitation on the MNAs' right to participate in proceedings under Article 95 of the Constitution, in addition to the consequences envisaged by Article 63-A of the Constitution, would be against the express constitutional command. Moreover, to restrict the right of MNAs to vote in proceedings under Article 95 of the Constitution would also amount to restriction on the citizens' right to be governed by a truly representative government," the SCBA said.
Outlining the procedure for voting on the no-trust move, the SCBA said that the rules showed that the Constitution and the Rules of Procedure "do not envisage a scenario whereby an MNA is restrained from casting his vote or where such a vote is not counted".
"Therefore, the question of pre-emptive action under Article 63-A cannot arise," the association said, adding that powers under Article 63-A could not be exercised by a party head under the "mere apprehension that a member may defect".
The SCBA also noted that there was no basis to construe disqualification under Article 63-A as permanent, highlighting that the term "disqualification" had not been used. It said that the consequences of Article 63-A for a defecting member "must remain limited to his removal from office as a member of the relevant House".
Separately, in its reply the PML-N said that Articles 63-A and 95 were clear and stated that every member had the right to vote. The party added that the votes cast by each member of the assembly should be counted and termed the presidential reference "premature and unnecessary".
The PML-N also stated that the apex court had the right to interpret the Constitution, not amend it.
The PPP stated that the presidential reference did not fall under the ambit of Article 186, which is related to the advisory jurisdiction of the SC.
SCBA becoming subsidiary of one political party: Fawad
Before the hearing started, federal Information Minister Fawad Chaudhry said that PML-N had been running a campaign on social media against the SC bench by calling it biased.
"They have always adopted the approach of 'my way or the highway' and we strongly condemn it," he said while speaking to the media outside the apex court alongside Energy Minister Hammad Azhar and Special Assistant to the Prime Minister for Political Communication Dr Shahbaz Gill.
The minister also criticised the SCBA for "becoming a subsidiary of a single political party".
The Supreme Court bar, he pointed out, was constituted from the vote of all parties and it should, therefore, not become hostage to the PML-N. He urged bar councils across Pakistan to speak up against them.
Attorney General of Pakistan (AGP) Khalid Jawed Khan had submitted the reference seeking the SC's opinion on Article 63-A of the Constitution on March 21.
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 came 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.
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 of the Constitution, which is related to the advisory jurisdiction of the SC.
In the reference, President Dr Arif Alvi 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.
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."
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".