Can’t make new defection law: Supreme Court

ISLAMABAD: The Supreme Court said on Tuesday that it could only interpret, not make, a new law on floor-crossing. It said the Constitution did not mention disqualification of a dissenting lawmaker after de-seating.

The Supreme Court’s larger bench under Chief Justice of Pakistan Justice Umar Atta Bandial was hearing a presidential reference seeking interpretation of Article 63(A) of the Constitution on a day-to-day basis.

The chief justice said disqualifying a legislator for violating party discipline was not the court’s domain. He said for political stability, it was necessary to maintain party discipline, adding that on what basis the court could decide that Article 62(1)(f) was applied to the violator.

“Disqualifying a dissenting lawmaker is not our domain, as we are not the legislature and we can onlyinterpret the law”, the chief justice said. He said the court could not rewrite the Constitution and asked the attorney-general whether this debate could decide the intention of its (Constitution) writer(s).

“We cannot inflict our own method of rulership on a weak democracy”, the CJP remarked. At this, Justice Jamal Khan Mandokhel said the court could not make a legislation which was the legislature’s job that had made a law to de-seat a member in case of defection.

“Whether you consider de-seating an ordinary punishment which is not”, the judge said. Justice Munib Akhtar asked after de-seating on what basis a member should be disqualified, saying the parliament could determine disqualification for two or five years.

Whether defection is a sufficient reason for lifelong disqualification, Justice Munib asked the AG. Justice Ijazul Ahsen questioned as to why the legislature was not determining the term of disqualification after amending the Constitution.

Justice Munib Akhtar said the parliament could make a legislation to determine disqualification period under Article 63-A of the Constitution. Justice Ahsen asked whether a member after de-seating on defection should be disqualified for life.

“Efforts are not being made by political parties in this regard, they want the apex court to do that”, the judge said. Advancing his arguments, the AG submitted that defection of a member could not be taken as an ordinary activity, adding that the Constitution mentioned the tenure of the assembly but not of the members. 

He said in case of the dissolution of the assembly, the membership of lawmakers automatically ended.He said the purpose of Article 63-A would be fulfilled with lifetime disqualification, adding that the basic question before the court is whether the dissident member will be eligible for contesting election after declaration or not.

When the AG referred to the Pir Sabir Shah case, Justice Ijazul Ahsen interrupted and observed in that case defection had been defined and held that leaving the party for personal interest was not legal, adding the same is also against the moral principles of Islam. Justice Jamal Khan Mandokhel said a member might differ with the party on principles to which the AG said that Article 62(1(f) would be applied to defection and after declaration.

“Thief is a thief, nobody could be called a good thief or a bad thief”, the AG replied Justice Ijazul Ahsen said that Article 63-A did not require evidence, adding the head of the party will give a declaration of disqualification

Justice Munib Akhtar said that nothing was mentioned about lifelong disqualification in Article 63-A, adding but giving false affidavit leads to lifetime disqualification. The judge said there were separate court decisions pertaining to the application and consequences of Article 62(1)(f).

Justice Jamal Khan Mandokhel said the trial of a person in case of a false affidavit should be held and he might be given an opportunity to defend himself, adding he may review his decision on the call of conscience.

When Justice Mandokhel repeated that it was not the job of the court to make lesislation. the AG said that the court while giving lifetime disqualification had not asked for legislation. The AG further submitted that tendering resignation was not a sin, adding the dissident gets disqualified for not adhering to the declaration.

Justice Jamal Khan Mandokhel said Article 95 protected members of the parliament. “Why does an honest person not tender his resignation before defection”, the AG replied to which the Justice Mandokhel said nobody could be forced to resign from his seat.

After the attorney-general concluded his arguments, the court asked Makhdoom Ali Khan, counsel for leader of the Opposition in the National Assembly Mian Shehbaz Sharif, to commence his arguments.

The learned counsel at the start of his arguments said that the vote of dissenting member be counted in the no-confidence motion against the prime minister. Justice Munib Akhtar, however, asked what clause of the Constitution mentioned that a member of the parliament would vote freely, adding the procedure had been described in Article 66.

“The purpose of Article 63-A is to refrain a member from violating party’s discipline”, Justice Munib said, asking the counsel whether restraining defection is not the right of the party.

“Whether for the stability of the system in parliamentary democracy, unconstitutional step could not be resisted”, Justice Munib asked.

The judge further asked whether a vote could not be counted after making an amendment to the assembly rules and asked the counsel to assist the court on these points. Later, the court adjourned the hearing for Wednesday (today).