Chief Justice of Pakistan Umar Ata Bandial on Wednesday observed that while defection was a "serious menace" in parliamentary politics, imposing a lifetime ban on dissident lawmakers would be a "severe punishment".
He made these remarks 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, related to disqualification of lawmakers over defection.
"For the progress of the country, a stable government is needed," the chief justice said, adding that "the [game of] musical chairs that has been taking place for power since the 1970s must end."
Justice Bandial said while the court cannot amend the law, it can also not allow anyone to "become the beneficiary of detrimental measures".
Justice Ijazul Ahsan said that one way of dealing with defection could be de-seating but wondered what another punishment to go with it could be.
He said the duration of disqualification was not mentioned in Article 63-A, and questioned if the said article can be read with some other one.
"The question is that what would be the procedure of defecting lawmakers' disqualification? " Justice Jamal Khan Mandokhel asked. "If the allegation of accepting bribes has been levelled, what would its evidence be?"
Justice Ahsan remarked that defection in itself is a constitutional crime. "If elections are held as per law than these things would end."
Justice Ahsan asked advocate Mansoor Awan, the counsel of the Supreme Court Bar Association (SCBA), if defecting from the party was an acceptable practice in his opinion.
"De-seating is appropriate for whoever defects on the basis of their conscience, but those who defected in return of monetary benefits must be given severe punishment" the SCBA counsel replied,
At this, Justice Muneeb Akhtar remarked that those acting on their conscience must resign instead of defecting. "I will not use the word that is used by the public for those defecting."
At the outset of the hearing today, PML-Q counsel Advocate Azhar Siddique told the court the purpose of Article 63-A was to restrain lawmakers from defection, adding that a constitutional amendment was also made to prevent the practice.
He recalled that PTI lawmakers violated the party policy on April 16 and voted in favour of Hamza Shehbaz for his election as Punjab Chief Minister, [in the Punjab Assembly].
Chief Justice remarked that the court could not comment on the disqualification reference [taken up] by the Election Commission of Pakistan. "The matter pertaining to defected lawmakers is pending with the ECP."
Siddique responded that his case did not relate to disqualification and that it was instead about "the theft of mandate in a broad daylight".
Justice Mazhar Alam Miankhel said the matter had to be analysed by the ECP, adding an appeal against the decision of the election commission would eventually land in the apex court.
Advocate Siddique informed the court that the word "disqualification" instead of "de-seating" was used in India for defected lawmakers.
Meanwhile, CJP Bandial remarked that a resolution for the no-confidence motion was tabled in the parliament on March 28, noting that debate should have been held on the reasons for presenting the motion on March 31.
"We have to protect the Constitution and that is the reason we are hearing the reference for the interpretation of Article 63-A."
Justice Akhtar said Article 63-A could be read together with Article 17(2), which pertains to freedom of association and underlines that political parties have rights under it.
Article 17(2) reads: "Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within 15 days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final."
As the proceedings continued, the court also sought the assistance of the Attorney General of Pakistan, Advocate Ashtar Ausaf Ali, who assured the court of presenting arguments in the case on Tuesday (May 17).
The chief justice questioned the AGP whether he could interpret Article 63-A in a way that might bring "political and legal stability".
Ausaf responded that the judicial debate will determine one direction or another.
The CJP observed it was incumbent upon a party head whether to take action against a defected member or not.
Justice Akhtar said one notion was that the vote of a defected member should not be counted.
He said the discipline of political parties was necessary for the parliamentary system of government.
"There is a lot of volatility, pressure and instability in our political system," the CJP remarked, adding "we are here to resolve internal disputes of the parties."
The counsel of the Supreme Court Bar Association, Advocate Mansoor Awan, argued that the Constitution gave lawmakers the right to vote according to their conscience.
"If we accept your argument, where will the political parties stand?" asked Justice Akhtar, who was of the view that the entire system would "collapse" if Awan's argument was accepted.
The CJP recalled that the legislature wanted to strengthen the system in the 1973 Constitution. "In 1985, Article 96 was repealed, while elections the same year were held on a non-partisan basis."
He continued that the top court ruled in 1989 that elections should be held on a party basis and declared that political parties had rights. "Subsequently, Article 63-A was added to the Constitution."
At this, Justice Bandial wondered if Article 63-A was merely a "showpiece article".
Justice Mandokhel said the Constitution also gave the freedom of expression "while it is also being demanded that the punishment term for defection be extended".
The hearing was subsequently adjourned till Monday (March 16).
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".