ISLAMABAD: The Supreme Court Bar Association (SCBA) on Thursday sought review of the apex court’s May 17 judgement on the defection clause under Article 63A, saying the court opinion was not in accordance with parliamentary democracy established by the Constitution.

The SC verdict had declared that the vote cast contrary to parliamentary party lines under Article 63A of the Constitution should not be counted.

The SCBA in its petition, moved through senior counsel Mansoor Usman Awan, argued that the framers of the Constitution had intended to disregard defecting votes to be a stop-gap arrangement for ensuring stability during the first decade of Constitution’s framing.

Had it been the intent of the framers, or subsequently parliament to provide for disregarding defecting votes, a constitutional provision similar to the proviso of the erstwhile Article 96(5) would have been inserted, it added.

“Thus in the absence of such a constitutional provision, the interpretation of Article 63A adopted by the Supreme Court amounts to reincarnating the proviso to Article 96(5) of the Constitution which had not only been expressly subjected to a sunset clause by the framers, but has also never been reintroduced by parliament.”

The petition argued that the Supreme Court had held in the past that the Constitution was to be interpreted strictly in accordance with the clear and express language and that there was no room to supply additional meaning to constitutional provisions where there was no ambiguity in the language of the Constitution.

In the 2018 Sami Ullah Baloch case, the apex court had held that it was empowered to interpret the Constitution but not to amend it.

Thus, the review petition said, in holding that the votes of defecting members must be disregarded and not counted, the Supreme Court had ignored the principle of constitutional interpretation that has consistently been followed and upheld by it.

The petition pleaded that the interpretation of Article 17(2) in the May 17 judgement also merits reconsideration and review since the provision guarantees and protects the rights of citizens to participate in the constitutional democracy through their representatives.

“It is through these representatives that the citizens can express their confidence or lack of it in the government or the prime minister. This mechanism of citizens acting through their agents/delegates is a salient feature of our constitutional democracy,” the petition emphasised. Therefore, it said, the members are under a constitutional obligation to represent the interests of their constituents and this constitutional obligation prevails over any loyalty towards a political party of which he/she may be a member.

Published in Dawn, June 24th, 2022

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