• Says court functions 24 hours, not bothered by ‘finger-pointing’
• Babar Awan refuses to adopt arguments of former AGP

ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial on Monday said he expected that the country’s political leaders would show courage, conviction and character to stand up and defend the court’s judgements.

“This is the only way the court can deliver judgements,” the CJP observed, adding that the Constitution was sacrosanct and the court would not only defend it but also continue to safeguard the green book even if it had to suffer abuse for that.

“But we will take this abuse and defend the Constitution,” he said emphatically.

CJP Bandial was heading a five-judge SC bench that had taken up a presidential reference seeking interpretation of Article 63-A of the Constitution that deals with the defection clause.

Interestingly, the observations came while former foreign minister Shah Mahmood Qureshi was in attendance and sitting in the middle of the front row, reserved for litigants inside Courtroom No. 1. A little while later, the PTI leader quietly left the courtroom.

“Why should the court get into a political debate, unless there is a breach of fundamental rights,” the CJP wondered, saying how could the judiciary deliver judgements if some political leader manages to gather 10,000 to 15,000 people in political rallies, only to reject the verdicts.

When senior counsel Mustafa Ramday, representing the BNP, highlighted the ongoing sullied and painful campaign against the judiciary, the CJP retorted: “We are a court of law and this court functions for 24 hours.” He said nobody needed to point a finger but the court was also not bothered about it.

Observers believed that the remarks were in response to Saturday’s public rally in Karachi, where former prime minister Imran Khan said it would be a test for the judicial system, that had opened its doors at midnight for his ouster.

“If the defection is allowed to permeate openly and horse-trading is encouraged freely then the parliamentary democracy will suffer eventually,” CJP regretted and then went on to mention former dictator Ziaul Haq who annulled the part of the defection clause from the Constitution which entailed penalty because he had held party-less elections and, therefore, it was necessary to encourage floor crossing to form a government then.

But under the 18th Constitution Amendment, this provision had been amended and now defection was a violation under the Constitution, CJP observed, adding that violation of the Constitution was not a small thing and even invocation of Article 6 (treason) was urged straight away for flouting it.

“We have to answer the presidential reference in accordance with the Constitution,” the CJP observed, adding that the counsel representing different parties had to assist the court whether the offender should be allowed to move on smilingly or face consequence.

“You argue that the penalty should be enhanced, but could the Supreme Court even add a full stop to the Constitution,” Justice Jamal Khan Mandokhel Advocate General for Islamabad Niazullah Niazi who argued in favour of imposing disqualification for life under Article 62(1)(f) of the Constitution for committing defection.

During the hearing, PTI’s counsel Babar Awan startled the apex court when he accused former attorney general for Pakistan (AGP) Khalid Jawed Khan, who had authored the present presidential reference, of taking a summersault, saying he was the senior PTI counsel but he was not allowed to talk about Article 5 of the Constitution before the court.

Mr Awan’s reaction came when he was asked by the CJP if he would like to adopt the arguments of the former AGP. The counsel straight away refused to adopt the ex-AGP’s arguments, but requested the court to hear him on the reference on Tuesday.

During the hearing, CJP Bandial also expressed dismay over the attitude of the heads of parties, saying that in defection cases it was the party heads who were the protagonist but he was sorry to state that they were not serious in pursuing such cases.

“The political parties must initiate the cases but like in this case, they leave it to the court to take suo motu when the apex court has already changed the contours of processing the suo motu cases drastically and now it could be taken only on the initiation of a judge or some letter or information”, he observed.

While pointing towards Babar Awan, the CJP regretted that the political party he belonged to did not follow up and pursue the matter of defection during the Senate elections before the Election Commission of Pakistan (ECP).

Mr Awan, however, shifted the entire burden on the ECP by stating that it did nothing when it was its prime responsibility to honour the directives of the Supreme Court in the Senate vote reference and other judgements, since it had to hold free and fair elections in the country. The commission, he said, did not even initiate the process of granting voting rights to overseas Pakistanis.

The CJP, however, observed that even his [Babar Awan] party left the matter to the ECP to take suo motu on defection instead of pursuing the matter and requested the political parties to strengthen the parliamentary democracy and rectify the situation.

Mustafa Ramday questioned the timing of filing the reference and alleged that they wanted to use the shoulder of the apex court to rewrite the Constitution by pulling the top judiciary into the political thicket.

“The simple question to be asked is who is stopping the party heads from effectively implementing and enforcing the defection clause,” the counsel argued. He emphasised that the initial decision of the party head was necessary before invoking the defection clause.

Advocate Hassan Irfan Khan, representing petitioner Asadullah Khan, argued that the prime minister could not be allowed to have unbridled powers to have constitutional bill voted or passed to convert democratic parliamentary democracy into the presidential system or eliminate Article 199 or Article 184(3) from the Constitution, which may become possible if Article 63A was interpreted to have lifetime disqualification.

Published in Dawn, April 19th, 2022

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