Supreme Court Justice Ijazul Ahsan observed on Friday that during elections, voters stamped on a party's electoral symbol which meant that lawmakers contesting on a party's electoral symbol were bound by party discipline.

He made these remarks during the hearing of a presidential reference seeking the Supreme Court's opinion on Article 63-A – which deals with a parliamentarian's disqualification for defection – of the Constitution.

A five-member bench, comprising Chief Justice Umar Ata Bandial, Justice Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail heard the petition.

Earlier in the hearing, Justice Mandokhail asked if any member [of the National Assembly] could express no-confidence against the prime minister.

At this, Attorney General of Pakistan (AGP) Khalid Jawed Khan said that a party ticket is a certificate that bears the electoral symbol. He said MNAs elected on reserved seats for women and minorities do not receive votes from the people, and instead they are nominated by their parties. Some of the MNAs elected on reserved seats were also present at the Sindh House, he said, referring to dissident PTI lawmakers.

There is a difference in the oath of the prime minister and an MNA, he pointed out.

He said that in the subcontinent, political parties such as the Congress and Pakistan Muslim League were formed in the names of great leaders and still continue to exist.

In a parliamentary democracy, the AGP said, parliamentary sessions are held, but MNAs are not supposed to be "rubber stamps". If they don't agree with the party's decision, they may resign, he suggested, adding that differences with the party didn't mean going against the government.

Justice Mandokhail remarked that the Constitution gave everyone the right to free expression of their views. "Should [an MNA] be disqualified for expressing their views?" he asked.

'Reference may possibly be sent back'

Chief Justice Bandial, however, observed that the Holy Quran mandated severe punishment for dishonesty. "A person who breaks trust is called a traitor," he remarked.

"But does a member declare to be bound by the party?" he questioned, and then asked the AGP when should an MNA be declared a defector. He added that the Constitution did not specify anywhere that MNAs were required to be loyal to their parties.

"Article 62(1)(F) talks about qualification, not disqualification," Justice Bandial said.

Justice Munib Akhtar, too, asked whether Article 62(1)(F) would be applied upon violation of Article 63-A, noting that Article 63-A talked about vacating seat.

Here, Justice Mandokhail inquired if an MNA had ever resigned after casting their vote. AGP Khan replied that it had happened in India and the Supreme Court had declared the member a defector. "Nobody can be encouraged to deviate from the party," he added.

Justice Mandokhel said the president could have called a meeting of political parties with representation in Parliament and discuss the issue with them before filing a presidential reference.

Justice Ahsan, here, remarked that the president had asked for the interpretation of the Constitution and the court could not drift away from that. "It is possible that the reference may be sent back," he added.

Discussion on Article 63-A

Meanwhile, Justice Bandial said that the length of disqualification in Article 63-A can be included through the legislation.

"If the vote is not counted, there's no point in boarding another ship," Justice Munib pointed out.

Justice Mandokhail, on the other hand, asked if a member had the right to expression under Article 63-A. He, however, observed, that if an MNA went against the party, he had to face consequences.

AGP Khan, here, contended that under Article 63-A, no one had been disqualified so far, and that it was not necessary to prove that money had been accepted for voting against party line.

Islamabad police told to cooperate with JUI-F

During the proceedings, the advocate general of Islamabad said that the Jamiat Ulema-e-Islam (JUI-F) wanted to block the Kashmir Highway to which Kamran Murtaza, JUI-F's counsel, said that they were ready to cooperate with the police.

"We don't understand why the administration [of Islamabad] is scared," Murtaza said.

To this, the CJP said democratic values should be followed and instructed the Islamabad attorney general to cooperate with the party.

The court, subsequently, adjourned the hearing till Monday after the AGP promised to complete his arguments before 2pm on March 28.

On Monday (March 21), 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.

The reference

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."

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".