ISLAMABAD: If the head of a political party condones defection, it amounts to a mockery of the Constitution and parliamentary norms, Chief Justice of Pakistan (CJP) Umar Ata Bandial observed on Monday.

Defection by a legislator not only causes harm to a political party but is also a negation of Article 17 of the Constitution (freedom of association), the CJP observed during the hearing of a presidential reference seeking interpretation of Article 63A of the Constitution, which relates to defection.

“It amounts to a mala fide act against parliament.”

Under such circumstances, the Supreme Court has to determine what least it can do to eliminate the menace of defection or whether to be a “silent spectator and watch on television or go through social media clips regarding unfortunate dealings or selling of votes by members of a party”, the CJP said.

Justice Bandial expressed his disappointment over the absence of Attorney General (AGP) Ashtar Ausaf despite an assurance that he would be present on Monday.

Additional Attorney General Chaudhry Aamir Rehman informed the court that the AGP was on his way to Islamabad from Lahore where he had gone in view of the looming constitutional crisis in Punjab.

But the AAG was told that the AGP’s priority should be the Supreme Court.

The CJP also expressed disappointment over the absence of senior counsel Makhdoom Ali Khan — who is busy in an international arbitration abroad — and observed that the two belong to the same political party and their absence gives an impression of delay.

The court adjourned further hearing to Tuesday with an observation that it was being done for the AGP’s convenience.

Advocate Mustafa Ramday, representing the Balochistan National Party (BNP), argued that although Article 63A disapproves of defection, it does not envisage a greater penalty than de-seating of a member, besides resignation. When a majority of the political parties do not apply principles of democracy in their ranks, interpretation of Article 63A in such a manner as to make party heads powerful would turn them into “Frankenstein”.

“The process of purification should start from within a party. Otherwise, the party will suffer more dictatorship.”

Mustafa Ramday emphasised that the reference was sent by the president, who belongs to a political party, at a time when the prime minister, the party’s head, was in trouble.

“Why no references were sent after the Senate elections?” the lawyer asked.

Justice Bandial observed that the Constitution promotes democracy and protects the political party system through Article 17, but the Constitution shows no commitment to individual members and in the 1997 Achakzai case, democracy was even recognised as the salient feature of the Constitution.

In case of defection, a legislator does not suffer much since the Constitution empowers the party head to condone or give concessions on a give-and-take basis.

Looking at Article 63A from the other side, the counsel argued, such process would make the party head a dictator.

Justice Ijaz-ul-Ahsan wondered how democracy would be protected if individual members betray the trust reposed in them by a political party and the electorate.

The court has to interpret Article 63A from all possible angles, especially when Article 17 is designed to protect political parties, Justice Ahsan emphasised.

The counsel argued that giving unbridled authority to party heads or taking away the rights of members from voting in or voting out the prime minister would undermine the doctrine of check and balance.

Published in Dawn, May 17th, 2022