Supreme Court hints at sending presidential reference back

ISLAMABAD: The SC bench hearing the presidential reference appeared divided on the definition of floor crossing on Friday. Justice Ijazul Ahsan remarked that the president had asked for the interpretation of the Constitution and the court could not drift away from that. "It is possible that the reference may be sent back," he added.

Chief Justice Bandial, however, observed that the Holy Quran mandated severe punishment for dishonesty. "A person who breaks trust is called a traitor," he remarked. He added that the Constitution did not specify anywhere that MNAs were required to be loyal to their parties. Justice Ijazul Ahsen said politics requires higher standards of ethics and morality. Changing loyalty with changing tide is opportunism.

Dissent is aimed at strengthening the system. It is better to resign if one does not like the party policies, he said. The Supreme Court also questioned why the Parliament did not determine the punishment for changing the loyalty of lawmakers in the Election Act 2017.

A five-member bench of the apex court headed by Chief Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhel heard the Presidential Reference seeking interpretation of Article 63(a) of the constitution on Friday.

The Supreme Court on also questioned why the Parliament did not determine the punishment for changing the loyalty of the lawmakers in the Election Act 2017. Attorney General Khalid Javed while continuing his arguments submitted that the apex court is the custodian of the constitution and if it declares lifetime disqualification of lawmakers for changing their loyalties, then there will be a complete end to defection.

Chief Justice Bandial, however, observed that the Holy Quran mandated severe punishment for dishonesty. "A person who breaks trust is called a traitor," he remarked. "But does a member declare to be bound by the party?" he questioned, and then asked the AGP when should an MNA be declared a defector. He added that the Constitution did not specify anywhere that MNAs were required to be loyal to their parties. Justice Mandokhel asked as to whether the court could interpret the constitution in an advisory jurisdiction to which the AG replied that the vacuum still exists. Chief Justice Umer Ata Bandial however, observed that Article 62(1) (f) deals with the qualification of a person for becoming a member of the Parliament but does not talk about disqualification. The Chief Justice observed that the Parliament had an opportunity for determining the punishment in the Election Act 2017 for lawmakers, changing their loyalties. Why it was not done and what was the fear”, the CJP remarked. Chief Justice Umer Ata Bandial asked what was the fear when Election Act 2017 was introduced adding that the Parliament did not mention except the de-seating of a lawmaker. The AG replied that the Parliament did not make lifetime disqualification under Article 62(1) (f). The Chief Justice said that the role of the court is there in Article 62(1) (f) adding that the length of disqualification in Article 63-A can be included through the legislation. Justice Munib Akhtar observed that if the vote is not counted then there is no need of boarding another ship.

Attorney General submitted that women and minorities have reserved seats in the Parliament but even they were also present in the Sindh House. "According to your stance that those who voted against the party’s discipline are dishonest, so tell us as to whether a member of the parliament gives a declaration that he/she will abide by the party’s policies”, the CJP asked the AGP.

Supreme Court Justice Ijazul Ahsan observed that during elections, voters stamped on a party's electoral symbol which meant that lawmakers contesting on a party's electoral symbol were bound by party discipline. Justice Ijazul Ahsen asked if a member gives an affidavit in party membership form that he will abide by and if he violates his affidavit, then the violation of party discipline will be dishonesty. Justice Ijazul Ahsen politics requires higher standards of ethics and morality. Changing loyalty changing tide is opportunism. Dissent is aimed at strengthening the system. It is better to resign if one does not like the party policies, he said.

The AGP said that in Sri Lanka, Bangladesh and Pakistan, the party runs with the leader’s name adding that the Muslim League and Congress were parties of big leaders. He further submitted that the constitution has guaranteed the right to dissent and the lawmakers are not rubber stamps but the differences are within the party but no-confidence motion is entirely a different ball game. "If someone differs with the party, the best choice is to tender resignation instead of changing loyalties”, the AGP replied.Justice Jamal Khan Mandokhel observed that the prime minister also has taken the oath of his office and if he violates the constitution, whether the member of the party is required to side by the party? There is a difference in the oath of the prime minister and an MNA, the AGP pointed out. He replied that a party ticket is like a certificate on which symbol is allotted. Justice Jamal Khan Mandokhel asked if anyone differs and votes against the party, will he be de-seated? "Why a member resigns for having differences with the party”, Justice Mazhar Alam Khan Miankhel asked to which the AGP replied that because he is elected on the party vote bank. "If one could not differ, then what is the status of the right of his freedom of expression”, Justice Mandokhel asked. "If someone asks you that after accepting the office of the Attorney General, you cannot continue law practice for life whether it will be right?" the judge asked the AGP. “I will think about it as to whether I should accept the portfolio or not," the AGP replied.

"Whether it was not appropriate that before seeking the opinion of the court, the president should have taken the parliamentary parties into confidence”, Justice Mandokhel asked the AGP. The AGP, however, replied that former President Ghulam Ishaq Khan used to call the political parties and then sack the government. "But none has yet defected and you filed a Presidential Reference”, Justice Mazhar Alam Miankhel told the AGP to which Khalid Javed replied that the purpose was to prevent the crime before it could take place. But how one can be punished before committing a crime, the judge asked to which the AGP replied that they have approached the court to clarify the law. Justice Ahsan, here, remarked that the president had asked for the interpretation of the Constitution and the court could not drift away from that. "It is possible that the reference may be sent back," he added.

Before the court adjourned the matter until Monday, the Advocate General of Islamabad told the court that the Jamiat Ulema-e-Islam (JUI-F) wanted to block the Kashmir Highway. The chief justice observed that the counsel for the JUI-F had assured the court that they will be peaceful in holding the rally. At this, Kamran Murtaza, counsel for JUI-F, said that he has just heard about that but assured the court that will abide by their earlier commitment made with the august court and will cooperate with the administration and police. He, however, wondered as to why the administration [of Islamabad] was scared.

Meanwhile, the chief justice observed that the political parties will adhere to democratic values and will cooperate with the administration. Meanwhile, the court adjourned the hearing until Monday wherein the AGP will argue for more for two hours.