Justice Ijazul Ahsan said on Tuesday that a lawmaker would remain disqualified until a court cancelled the declaration for his disqualification.
He made the comments as a five-member bench headed by Chief Justice Umar Ata Bandial, and also comprising Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, resumed hearing the presidential reference seeking the apex court's interpretation of Article 63-A of the Constitution, which is related to disqualification of lawmakers over defection.
During today's hearing, PTI's lawyer Babar Awan presented his arguments on behalf of party chief Imran Khan. He argued that those who were defaulting on the payment of their utility bills were also not eligible to become a member of parliament.
"If the time period is not determined then the disqualification is for life," he contended.
At this, Justice Mandokhail asked whether the lawmaker would continue to remain disqualified if they paid their outstanding utility bills before the next election.
Justice Ahsan said that the lawmakers' disqualification would end once the outstanding dues are paid. Only disqualification under Article 62(1)(f) — which sets the precondition for a member of parliament to be "sadiq and ameen" (honest and righteous) — is life-long, he observed.
But, he added, that the "disqualification will remain in place until the declaration is cancelled by the court". "Disqualification for the non-payment of utility bills cannot be for life," Justice Ahsan added.
Awan went on to say that it was an affront to Article 63-A if a lawmaker was de-seated and then returned to parliament within 15 days to perhaps become a minister.
Justice Mandokhail replied by telling Awan to carry out law reforms. "The door of repentance is always open," he stated.
Justice Miankhel called on the counsel to read Article 63(1)(g) of the Constitution. "You are asking us to declare dissident lawmakers disqualified for life," he said, to which Awan replied that it was a "serious crime".
"In my eyes, the violation of Article 63(1)(g) is a more serious crime," Justice Miankhel replied, adding that it concerned the ridiculing of the judiciary and the army as well as the ideology of Pakistan.
Article 63(1)(g) says that a member of the parliament stands disqualified from the membership of the parliament if he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, that is prejudicial to the integrity or independence of the judiciary of Pakistan, or which defames the judiciary or brings it into ridicule.
The observation by the judge comes amid criticism of the judiciary by the PTI chairman, who has been questioning why courts opened their doors late in the night before his ouster as prime minister through a no-confidence motion. The judiciary has defended its actions, with the Islamabad High Court stating that matters of extreme urgency can be brought to the attention of the court at any time.
During the hearing, Justice Akhtar also asked how Article 63-A was related to Article 62(1)(f). Awan replied that his argument was that Article 63-A itself disqualified dissident lawmakers for life.
"Should 26 lawmakers be allowed to abandon the party?" he asked. In this way, the party with the majority would come in the minority, he said.
"You want the (interpretation of) Article 63-A to be so rigid that no lawmaker can defect," Justice Ahsan observed.
The PTI counsel argued that a "surgical strike" was inserted in Article 63-A under the 18th Amendment to get rid of the cancer that was defection. He added that the 18th Amendment was unanimously passed by parliament.
At one point, he also gave the reference of the SC verdict which legitimised former military ruler General Pervez Musharraf’s martial law. "The apex court gave Musharraf the power to amend the Constitution," he said, adding that the powers of the court were unlimited.
"Some say the judiciary should be independent while others say it should be subservient to the Constitution. Parliament, the judiciary and the executive should all be subservient to the Constitution," Justice Mandokhail said.
Only the judiciary can ensure everyone is subservient to the Constitution, Awan responded. The judiciary not only interprets the Constitution but also makes laws clear with its decisions, he said.
Once Awan concluded his arguments, the lawyer for the Pakistan Muslim League-Quaid (PML-Q), Azhar Siddique, began his arguments.
He told the court that British lawmakers resign even if they are suspected of indulging in corruption worth a mere one pound. On the other hand, those disqualified by our courts for not being sadiq and ameen are not ready to accept the verdict, he said.
Justice Mandokhail asked whether an independent lawmaker took an oath when they joined a political party. "Does the independent lawmaker swear to abide by the party's each and every decision?" he asked.
The PML-Q's counsel replied that the lawmaker accepts all the conditions before joining the party.
Justice Mandokhail also stated that Article 63-A provides a forum for taking action against dissident members. Siddique added that dissident lawmakers could also not cast their vote.
At one point, Justice Mandokhail observed that the punishment under Article 63-A was to rescind the membership of the dissident lawmaker. "Do you want to increase the punishment for a dissident lawmaker?" he asked.
Siddique replied by saying that his argument did not concern the extension in the lawmaker's punishment. "Article 63-A is a protective wall against a no-confidence motion," he argued.
During the hearing, Justice Ahsan also observed that it had become "tradition" for a government to be overthrown by throwing money at people. "The future of 220 million people is put at stake with the buying and selling of a few people," he said.
Justice Ahsan also observed that the practice of buying and selling lawmakers with the purpose of overthrowing the government should come to an end.
During the hearing the PML-Q's counsel also referred to the Charter of Democracy — a 36-point document signed by the PPP and PML-N in May 2006, primarily with the aim to end dictatorship.
To this, Justice Mandokhail remarked that it would have been a part of the Constitution if all parliamentary parties had been in agreement over the document.
He further said that no one had barred the party leader from punishing dissidents members. The party leader is only required to specify that the member has defected, he said.
Resuming his arguments, Siddique said that departmental inquiries should be initiated against the corrupt, as well as criminal proceedings.
"Would it not be more appropriate that action is taken once horsetrading and corruption are proven?" asked Justice Mandokhail. Siddique, however, contended that proving corruption and defection were separate matters.
Justice Mandokhail also pointed out that two of the PML-Q's members had voted against the party line but the PML-Q chief had opted not to take action.
Justice Ahsan went on to say that horsetrading posed a risk to "democracy and the system". "It is not possible that one resorts to wrongdoing and then also benefits from it. How can those guilty of a crime be allowed to benefit from it?" he wondered.
At one point, Justice Mandokhail also remarked that deviation from the party policy could also be in favour of the country.
Following this, the court adjourned the hearing till 12pm tomorrow (Wednesday), directing Siddique to complete his arguments within 15 minutes.
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".