No-trust motion: Votes to be cast, counted, says Supreme Court

ISLAMABAD: The Chief Justice of Pakistan (CJP), Justice Ata Bandial, in the case of presidential reference remarked that courts cannot fill in the blanks; the Parliament, rather than references, should settle the matter. Justice Mandokhel observed if a member casts his vote, then it must be counted as well.

A five-member larger bench of the apex court, headed by Chief Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen, Justice Mazhar Alam Khan Miankhel, Justice Muneeb Akhtar and Justice Jamal Khan Mandokhel, heard the presidential reference ahead of the no-confidence motion against Prime Minister Imran Khan.

Chief Justice of Pakistan Umar Ata Bandial 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. The Article 63-A laid out the procedure for the disqualification of a parliamentarian over defection, he observed. Earlier in the hearing, Justice Mandokhail questioned whether an MNA's vote could be counted in the proceedings conducted before his de-seating, observing that there was no mention of not counting a vote in the 18th Amendment. At this, Attorney General of Pakistan (AGP) Khalid Jawed Khan said that members elected to the assembly were bound by the party discipline. During the course of hearing, Chief Justice Umer Ata Bandial, while referring to the Presidential Reference seeking interpretation of Article 63(A) of the constitution, observed that instead of reference, these matters should be settled in the Parliament and it is not the court's job to fill in the blanks.

The Chief Justice observed that Article 63(a) is a discipline for an emerging political system that requires a lawmaker to stand with a party even if he is unsatisfied with the party. "Even you are unhappy and angry, you have to obey the party’s discipline”, the CJP remarked adding that changing loyalty has two different aspects -- one political and the other is constitutional. "On the political side, the lawmakers will not be able to take the party’s ticket again while on the constitutional side, they will face disqualification”, the CJP remarked.

The chief justice further said that they cannot ignore the spirit of the constitution in the light of Article 63(a) which is also read with Article 62 (1) (f) of the constitution. The chief justice said that there were two questions before the court — one as what would be the length of a disqualification after a member of the Parliament changes his loyalties and second when the disqualification will commence.

Justice Jamal Khan Mandokhel, while addressing the learned Attorney General, observed that under Article 95 of the constitution, every member has a right to vote and if he casts his vote, then it is counted as well. The judge recalled that it is evident that the prime minister has to relinquish after failing to get the majority vote adding that in Balochistan, the government was changed after the ruling MPAs voted against the provincial Chief Executive in the no-trust move.

Justice Munib Akhtar another member of the bench observed that in Parliamentary democracy, the political parties have a central role adding that if a person is elected on a particular party’s ticket then he has to follow and obey the party discipline and has to cast his vote as per the mandate of his respective party. The vote is cast on party’s desire and that’s is it”, Justice Munib Akhtar remarked. The Judge further observed that if everyone goes according to his own will then the political party will become a mob and will not remain an institution. Attorney General Khalid Javed during the course of his arguments cited the apex court judgment in Khwaja Tariq Raheem's case holding that if any member of the Parliament is conscious about his conscience then he should resign from the party He submitted in 1988 in Benazir Bhutto case and then in Nawaz Sharif case in 1993, the court had preferred the collective vote on individual vote.

Justice Jamal Khan Mandokhel asked the AG as to whether along with the party, the member of any party is not answerable to his constituency. What is the limitation of party discipline”, the judge asked. Justice Ijazul Ahsen observed that Article 63(a) is meant for maintaining party discipline whereas jumping to another party can dislodge the government adding that most of the democratic governments are formed with a slight majority votes. Whether jumping to another boat can sink the first one and if this is then it will open a Pandora box while the musical chair will go on”, the Judge continued. He further observed that a political contract is that a person gets the party ticket on the conditions and requirements settled by the party which has to be followed.

Justice Munib Akhtar remarked that Article 63(a) is inserted for the purpose of discouraging the party discipline violation. The judge further observed that political parties are institutions and violating their discipline weakens it. Justice Jamal Khan Mandokhel asked the AG as to whether floor-crossing is held in developed countries.

The AG replied that it depends on the environment as he said that during Christmas prices of essential commodities are reduced there while here during the month of Ramadan, the prices go up. “Whether you are making the party’s head as King, the judge asked. Not a king but one should also abstain from becoming a “Lota”, the AG replied.

The judge further asked AG if the debate is held within the party to which the AG replied as to how much more debate could be done when the party’s MNAs sit in Sindh House, criticizing the party. Chief Justice Umer Ata Bandail remarked that even if a member of the party is unhappy or angry he has to obey the party discipline. If not, he has to face the consequences.

The AG submitted that one should be disqualified for a lifetime by violating the party’s policy adding that Article 63(a) is not an isolated article but it should be related to Article 62(1) (f) of the constitution which is the requirement for qualification for becoming a member of the Parliament and it required that one has to be honest, Sadiq and amen. It's not the voice of conscience that you change your loyalty and shift towards opposition”, the AG added.

Meanwhile, the Chief Justice asked Attorney General as to how much time he will seek to conclude his arguments to which he replied that he will take two hours more. The Chief justice then said that they will hear the case (today) Friday after the prayer at 1: 30 pm. Farooq H Naek, counsel for PPP requested the court to decide the case at the earliest keeping in view the importance of the matter.

Former Chairman Senate Raza Rabbani told the court that he has also submitted an application hence he should be heard also in the matter. The Chief Justice told Rabbani that the court wanted to appoint him as amicus curie however, as he belongs to a political party and was also given an application, however, the court will hear him.

Earlier hearing the plea filed by the Supreme Court Bar Association (SCBA) against public gatherings of the Opposition and the government in the federal capital — Chief Justice of Pakistan Justice Ata Bandial stressed all the political parties including the ruling Pakistan Tehreek-e-Insaaf (PTI) to adhere to constitution and law while holding public rallies in the federal capital ahead of no-trust move in the National Assembly. “We expect that all the political parties will stand up to defend the constitution and will hold public rallies in a peaceful manner”, Chief Justice remarked. The court issued notices to Advocate Generals of all the provinces for their assistance in the matter. Advocate General Sindh Salman Talibuddin on video link from Karachi Registry expressed satisfaction over the action taken by the police regarding the attack on Sindh House. Attorney General Khalid Javed told the court that he has conveyed the court’s last order to Chief Commissioner Islamabad as well as Interior Secretary with regard to permission to political parties for holding public rallies. There is however one problem as JUI Pakistan had requested the administration to hold a public rally on the main Kashmir Highway leading to the Airport which may cause problems to the traffic, the AG submitted.

In this connection, the AG read out the law pertaining to the prohibition of public meetings and the settled principles before holding public rallies. He requested the court for its direction in this regard." Democratic process does not mean that the lives of ordinary citizens be affected”, Justice Ijazul Ahsen observed. Kamran Murtaza, counsel for JUI Pakistan, however, assured the court of obeying the law and submitted that they will strictly follow the law and will hold a rally in a peaceful manner. These people are afraid of you”, the Chief Justice told Kamran Murtaza with a smile. Justice Mazhar Alam Khan Miankhel another member of the bench observed that the Tiger Force was established by the government during the initial days of the COVID outbreak as well as JUI-F's Ansar-ul-Islam, which is very unfortunate. Meanwhile, the court adjourned the matter for today (Friday) at 1: 30 pm.