ISLAMABAD: Justice Ijaz-ul-Ahsan of the Supreme Court said on Tuesday it was regrettable that some elements in society hail a judgement as exemplary if it is in their favour, but pillory another as a travesty of justice if it does not suit them.

The observations came during hearing of the presidential reference seeking interpretation of Article 63A of the Constitution after Senator Farooq Naek, representing the PPP, said: “We are heading towards anarchy as the Constitution and judgements of the Supreme Court are not accepted with an open mind.”

But Chief Justice of Pakistan (CJP) Umar Ata Bandial, who is heading a five-judge Supreme Court bench, observed that he did not agree with the notion since it was too generalised.

Justice Jamal Khan Mandokhel, a part of the bench, regretted that most people had become so naïve that without understanding the real meaning of a judgement, they blindly lap up in whatever manner their leaders describe it.

“This is so unfortunate,” Justice Mandokhel added.

Justice Ahsan recalled that once he asked a visiting judge from the United States whether judges there have the power of contempt to prosecute a government in power if it defies a judgement.

The bewildered judge replied that “in America no government can even think of defying a judgement because the supreme court is seen as an ultimate arbitrator”.

“It’s taken for granted that voters will never vote for a party if it defies a judgement when it’s in power,” Justice Ahsan quoted the US judge as saying.

About the existence of Article 63A of the Constitution, the CJP observed that political parties always leave defection cases for the judiciary to arbitrate upon instead of punishing the beneficiaries for their wrongdoing.

Justice Ahsan observed that Article 63A of the Constitution was a clear warning to would-be defectors that they would stand nowhere if they changed their loyalty.

About the life-time ban under Article 62(1)(f) of the Constitution, Farooq Naek argued that since it did not specify any punishment, the apex court should itself spell out the punishment for defection. He suggested the guilty individual be barred from serving out his remaining term as legislator, and not for life as the presidential reference has sought.

Mr Naek argued that the Supreme Court could issue directions to the government for amending the Constitution, but it was up to parliament to pass laws to discourage defection or even amend the Constitution.

He explained that through the 18th Amendment, Article 62(1)(f) was not omitted from the Consti­tution as there was a disagreement between political parties.

He contended that the election form does not lay down that after getting elected a winning candidate will not act against the direction of the party head.

Farooq Naek further observed that the apex court cannot prescribe a punishment that the Constitution had not envisaged.

The judgements of the Supreme Court on Article 62(1)(f), especially in Nawaz Sharif’s case, were with respect to non-disclosure in the nomination form, which deals with a commitment before becoming the member and not after becoming a member.

Farooq Naek contended that there was no provision similar to Article 62(1)(f) in the Election Act 2017, powers under Article 62(1)(f) to a party head would elevate him to the stature of a king and debase the legislators’ stature to that of slaves.

The counsel argued it was clear from the literal interpretation of Article 63A that a member cannot be restrained from voting on a no-confidence resolution under Article 95 (1) of the Constitution as neither provisions of Article 63A nor any other article barred parliamentarians from casting vote against the ruling party.

Taking a dig at the PTI, Farooq Naek said no legislator belonging to the ruling party can be stopped from casting vote at a time like the present when the “party in power has completely failed on all fronts”,

“A member cannot be declared as a defector until he has been declared so by a competent forum.”

Tuesday’s proceedings concluded with a question by Justice Mandokhel: “Why Parliament did not put any curb or defection if legislators think it is a big crime?’

Published in Dawn, April 20th, 2022

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