The Supreme Court of Pakistan, while hearing the Presidential Reference seeking interpretation of Article 63-A of the Constitution, said on Monday that resignation from the party is better than defection.

During the course of hearing, Chief Justice of Pakistan Umar Ata Bandial said that the Constitution promotes democracy and strengthens political parties, adding but leaders often don’t take action on defection.

He said Article 63-A protects the rights of a political party and its system. The article restricts a member to four things as far as the party policy is concerned, he added.

The CJP asked if one defects in the last six months of the assembly, can one be penalised, adding that there is a possibility one may get the consent of the party head on the act.

At the outset of the proceedings, the CJP took an exception to the absence of Makhdoom Ali Khan, counsel for Pakistan Muslim League, and Attorney-General Ashter Ausaf, saying it seems that both who represent the party and the government are interested in delaying the decision on the instant matter.

The CJP, while adjourning the matter for Tuesday (today), said that the matter at hand concerns interpretation of the Constitution and they want to decide it at the earliest. He said that they have pended the other cases and fixed this matter keeping in view the significance of Article 63-A.

“If Makhdoom Ali Khan doesn’t want to appear, he should submit written formulations,” the CJP said. Additional Attorney-General Aamir Rehman informed the court that the AGP was busy in Lahore in connection with provincial matters but on his way and may reach Islamabad by 3pm.

Justice Jamal Khan Mandokhel said that 32 countries out of 200 have laws that discourage defection from the party and six of them have implemented them.

Justice Ijazul Ahsen said that if every member uses his or her own will, how democracy will work, adding that under Article 63-A, the party has the right not an individual. The judge said that the Constitution does not approve of one’s giving vote according to one’s own conscience.

Mustafa Ramday, counsel for BNP Party, said the Article 63-A can’t make Article 95 ineffective, adding that it is not necessary that every defection is made for benefit.

He said that legislators have determined punishment for defection. The Constitution is quite clear on Article 63-A and it is not the job of the court to determine time span of disqualification.

“This is the job of the parliament and it should do it,” he said. Justice Ijazul Ahsen said the job of the court is to protect and interpret the Constitution.

The counsel said that political division will widen if punishment for defection is enhanced, adding that half members of a party voted against the party advice but the leader did not take action against them, so the court should also look into the conduct of the party leadership.

Advocate Ramday said that he will not defend any dissident member. He said the court should also look into the fact whether democracy could flourish if punishment in Article 63-A is enhanced.

Justice Jamal Khan Mandokhel asked if the Constitution allows violation of the party discipline. The CJP asked if Article 95 of the Constitution permits members to vote against their own prime minister.

Advocate Ramday said that it allows members to vote against the party desire. The CJP said this point of the counsel has finished the status of a political party. “This way a political party will become a tea party,” the CJP said.

KP’s Advocate-General Shumail Ahmed Butt said that exercising the vote independently is the right of the public only, not of an elected MP. He said that Article 63-A should be read with Article 62(1(f).


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