Supreme Court Justice Munib Akhtar, who is part of a five-member bench hearing a presidential reference seeking the SC's interpretation of Article 63-A of the Constitution, observed on Friday that the "honourable way out for dissident lawmakers is to resign and go home".
He was responding to PML-N counsel Makhdoom Ali Khan's argument that disloyalty to the party was different from disloyalty to the state.
During a hearing earlier this week, Justice Akhtar had likened defection in parliamentary democracy to the devastation wrought by cancer on a human body.
The five-member bench of the SC hearing the presidential reference, which is related to disqualification of lawmakers over defection, is headed by Chief Justice of Pakistan Umar Ata Bandial and comprises Justice Akhtar, Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail.
When the hearing resumed today, PTI counsel Ali Zafar continued his arguments, saying the purpose of Article 63-A was to end horse-trading.
"Violation of 63-A is a violation of the Constitution," he said, adding that votes cast by dissident lawmakers would not be counted as per the concerned article.
"There are court decisions on the role and importance of political parties. Independents and ticket holders of political parties become members [of the National Assembly] and Article 63-A is related to a member of the latter," he said.
Justice Ahsan questioned whether Zafar meant the votes would not be counted under Article 63-A, to which the counsel replied that he was saying the same in light of judicial interpretation.
The judge observed that counting of votes and dissent were two separate matters, asking whether a lawmaker's vote would not be counted even if there were no instructions from the party head.
Zafar replied that the party head would first issue instructions about voting and then the declaration regarding dissident members.
Justice Mandokhail then repeated Justice Ahsan's question about counting of votes in the absence of instructions from the party head, observing that if votes were not counted, it would mean no wrong had been committed since the concerned Article would come into force only after the vote has been cast.
He observed that according to Article 63-A, a dissident lawmaker could cast his vote but he would subsequently lose his seat.
Meanwhile, Justice Miankhel observed that the party head could only give a declaration after the vote had been cast, adding that the party chief could inform the speaker even while polling was going on.
Justice Mandokhail pointed out that after the vote had been cast, the party chief would first issue a show cause notice and seek the dissident member's reply.
"The party chief may end the show cause after being satisfied with the response received," Justice Mandokhail added.
Justice Ahsan questioned whether the decision regarding defection was taken by the head or the parliamentary party and what the procedure was.
A parliamentary party has a constitution and the majority took the decision, Zafar responded.
'Why can't party deal with the cancer?'
Justice Mandokhail questioned why political parties could not deal with the "cancer" of defection themselves. "If political parties have a problem, they should treat it."
Addressing the PTI counsel, he said the stance of most parties was different to the PTI's. "Are you expecting that we will leave the majority and agree with you? Only one political party is against dissidents."
Zafar responded that the authority to interpret the Constitution lay with the Supreme Court.
Justice Ahsan observed it was "very clear" that legislation was the parliament's job and interpreting those laws was the court's duty.
"The purpose of Article 63-A's inclusion was to end the cancer of defection," he added.
The bench directed Zafar to submit detailed arguments.
PML-Q lawyer Azhar Siddique endorsed the PTI counsel's arguments, saying Article 63-A was a "protective wall" against a no-trust resolution. Whatever had happened in the recent no-confidence vote that led to the ouster of Imran Khan was against the charter of democracy, he added.
PML-N counsel's argument
Meanwhile, PML-N counsel Makhdoom Ali Khan argued that the National Assembly's term was five years and a dissident lawmaker could be disqualified only for that length.
He recalled that Imran Khan had submitted a petition in the Supreme Court, seeking a lifetime ban from contesting elections for dissident lawmakers.
The chief justice noted that the question raised in the petition was the same as that in the reference.
"The court has no evidence in front of it as to why the lawmakers became dissidents. There is no proof of bribery or changing of consciences," the PML-N counsel said, arguing that it was not the dissident lawmaker's job to provide reasons for his defection.
The legal fraternity and the public had protested over certain constitutional amendments, he said. "The 7th Constitutional Amendment allowed [the government] to summon the armed forces in aid of civil institutions. The armed forces' actions in helping civil institutions were excluded from judicial jurisdiction."
The chief justice asked whether the apex court's interpretation of the law was limited to the questions asked in the reference to which Khan replied that the SC had been asked its opinion and it could exercise its authority under Article 184(3), which empowers the top court to intervene in matters involved in enforcement of fundamental rights.
The CJP remarked that the country needed to be taken towards "mature democracy" for which legislative discussion was essential.
The PML-N counsel said the PTI chairman had argued in his petition that the votes of dissident lawmakers should not be counted, adding that the reference had been filed to save the former premier from the no-trust vote.
"The court gave a historic decision to restore the Assembly," he added, referring to the SC's decision to set aside the deputy speaker's ruling to dismiss the no-trust resolution against Imran and the subsequent dissolution of the NA by the president.
"We do whatever seems correct in accordance with [our] consciences and the Constitution," the chief justice responded. "We pray that improvement comes in the country because of our decisions."
Subsequently, the hearing was adjourned till after Eidul Fitr.
Ahead of its ouster, the PTI government had filed a presidential reference for the interpretation of Article 63-A, asking the top court 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. Alvi cautioned 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."
The reference had been filed at a time when the then-opposition claimed the support of several dissident PTI lawmakers ahead of voting on the no-confidence resolution against then-prime minister Imran Khan. Eventually, the dissident lawmakers votes were not needed in Khan's removal, as the opposition managed to stitch together support from government-allied political parties.
However, the role of dissident lawmakers was crucial in the election of opposition candidate Hamza Shehbaz as the Punjab chief minister who bagged 197 votes, including from 24 PTI dissidents.
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".