Chief Justice of Pakistan (CJP) Umar Ata Bandial on Thursday observed that not counting a vote that has been cast during the no-trust proceedings against the prime minister would be “contemptuous”, adding that the real question was how long a dissident MNA could be disqualified for.
Article 63-A laid out the procedure for the disqualification of a parliamentarian over defection, he observed.
Earlier, during the hearing, Justice Mandokhail questioned whether the MNA’s vote could be counted in the proceedings conducted before he was de-seated, observing there was no mention of not counting a vote in the 18th Amendment.
The chief justice said that the “spirit of Article 63-A cannot be ignored”. It is not the court’s job to fill in the blanks. Such matters should be resolved in parliament rather than through a reference,” he observed.
Chief Justice Bandial said whether you are unhappy with your party, but you have to stand with it.
Justice Muneeb Akhtar said that the lawmakers are bound to follow the policy of the political party they are affiliated with.
He gave his observation during the hearing of presidential reference seeking interpretation on Article 63(A).
A five-member larger bench of the apex court, headed by Chief Justice Umar Ata Bandial and comprising Justice Muneeb Akhtar, Justice Aijazul Ahsan, Justice Mazhar Alam, and Justice Jamal Khan Mandokhel, is hearing the reference along with a plea filed by the Supreme Court Bar Association (SCBA) against public gatherings of the opposition and the government in the federal capital — ahead of the no-confidence motion against Prime Minister Imran Khan.
Justice Muneeb remarked that political parties are institutions. Violation of discipline weakens institutions. If party line is not adhered to, the political party will be destroyed.
AGP Khalid Javed Khan said that elections were held on non-party basis in 1985. But, a party was created and Muhammad Khan Junejo had to get vote to become the prime minister.
The Chief Justice said that the political and legal repercussions for violating party discipline. The political aspect is that the member will not get party ticket again, while the constitutional point is that he will be disqualified.
Justice Jamal Khan Mandokhel questioned that whether members are accountable to their constituencies and the party? To what extent, they have to follow party discipline?
The AGP said if the voice of a member is not being heard in the party, he can resign.
All the ways leading to Red Zone, including D-Chowk, Serena Chowk, NADRA Chowk and Merit Chowk have been barricaded with heavy police deployment to completely seal the area for the hearing of the presidential reference in the apex court on Thursday.
Moreover, police personnel are also deputed in and outside the court with water cannons present nearby.
As a result, the petitioners out to visit the Supreme Court and Pakistan Secretariat faced extreme inconvenience as only Margala Road was open.
“Lawmakers have to vote in accordance with their party’s mandate. They have to follow the party policy. Full stop, that’s it,” Justice Akhtar said.
However, he noted that no MNA can be tagged as “good boy or bad boy”.
Meanwhile, Justice Mandokhel remarked that the Article 55 stipulates that all the parliamentary proceedings should be done through voting.
Whereas CJP Bandial stated that Article 63(A) is a “discipline of the emerging political system.”
“The article binds the lawmakers to stand by their party no matter even if they are unhappy with it.”
At this, Attorney General of Pakistan (AGP) Khalid Jawed Khan said the country’s political system is based on Article 63(A) or Article 95 — whose violation could collapse the entire system.
TIGER FORCE, ANSAR-UL-ISLAM: During the hearing, the Supreme Court also expressed concern over the outfits established by different political parties.
Justice Alam said that the Tiger Force — established by the prime minister during the initial days of the COVID outbreak — and baton-wielding force, an apparent reference to JUI-F’s Ansar-ul-Islam, were a “misfortune” for the country.
The apex court asked all the political parties — including the ruling PTI — to follow the law when their respective rallies are held in a few days.
GOVT UNHAPPY: AGP Khalid Javed Khan read out the apex court’s order issued at the last hearing at the CJ’s directive.
Beginning his arguments over the SCBA’s plea, AGP Khan said that the government has recorded its stance that it is not satisfied with the progress that occurred in any hearing so far.
The opposition is also holding a rally at Kashmir Highway and the lawmakers affiliated with other political parties would also use the same way to reach Islamabad.
At this, JUI-F’s lawyer said that his client is a peaceful party that has never taken the law into their own hands.
“If the party would remain peaceful, then the government has no issues,” the attorney-general said in response.
Earlier, at the outset of the hearing, CJP Bandial said that the matter of an FIR on the Sindh House incident will be discussed in the hearing.
Senator Raza Rabbani proceeded to the rostrum in the courtroom and informed the court that he has appealed to become a party in the case.
At this, CJP Bandial told Rabbani to go back to his seat as the court will hear his arguments later.
RESPONSE: Earlier, SCBA submitted its response in the apex court, stating that voting is an individual right of an MNA instead of a political party’s collective right under Article 95.
It declared the MNAs’ right to vote for the no-confidence motion against the prime minister to be an individual capacity in its response over the presidential reference for the interpretation on Article 63A of the Constitution Pakistan.
“Every MNA is independent in using their right to vote and there is no disqualification over voting against party policy in Article 63A.”
“No MNA can be restrained from voting under Article 63A and every vote cast under Article 95 is counted,” SCBA said, adding that the public runs the government system through their elected representatives.
ARTICLE 63A: Meanwhile, JUI-F also submitted its reply over the reference, declaring Article 63A “undemocratic”.
“Disqualification on voting against party policy would further weaken the already fragile democracy.”
The JUI-F said that the article in question obliges the MNAs — who got elected as independent candidates — to follow a political party if they join it after winning.
“The reference seems to imply that the prime minister, president and NA speaker have always been Sadiq and Amin (honest and trustworthy) and will always remain so.”
Moreover, the JUI-F said that “it is not necessary that the opinion on the reference is given before polling for the vote of no confidence as the matter will eventually end up in the apex court if a disqualification case is filed against an MNA.”
It said that SC’s opinion before the voting would make the forum of the Election Commission of Pakistan ineffective.
The response further stated said that PTI is being run by “selected officials” since there hasn’t been party election in a while.
“The selected officials cannot direct the MNAs to vote or not to vote under Article63A,” JUI-F’s reply said.
It said that the National Assembly speaker cannot be given the authority to discard the MNAs’ votes therefore the court should refrain from ending the supremacy of the Parliament.
PML-N: Meanwhile, PML-N said in its response submitted in the SC that Article 63A and Article 95 are clear and every lawmaker has the right to vote.
The party seconded JUI-F’s argument that the vote of every MNA will be counted and that filing of the presidential reference is a premature and unnecessary move.
Moreover, the response documented by PML-N’s lawyer Makhdoom Ali Khan, said that the apex court “has the authority to interpret the Constitution but not to amend it.”
THE REFERENCE: Attorney General Khalid Jawed had submitted the reference seeking the SC’s opinion on Article 63-A of the Constitution on March 21.
The reference presents two interpretations of Article 63-A and requests the court to advise which of them should be followed.
According to the first interpretation, “khiyanat (dishonesty) by way of defections warrants no pre-emptive action save de-seating the member as per the prescribed procedure with no further restriction or curbs from seeking election afresh.”
While the second interpretation “visualises this provision as prophylactic, enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralising the effects of vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct.”
The development came days after several PTI lawmakers, who had been ‘in hiding’ at the Sindh House in Islamabad, revealed themselves — proving that the opposition’s claims of having “won over” members of the ruling coalition were indeed true.