Article 63A interpretation reference: Courts don’t care about what’s said on social media, says CJP

ISLAMABAD: Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial said Monday courts work for 24 hours and no one needed to point a finger at the courts in this regard.

He gave these remarks apparently in response to former prime minister Imran Khan's question on why the courts had to open at midnight on April 9 — the night he was ousted as the prime minister.

During the hearing on a presidential reference, seeking interpretation of Article 63A of the Constitution of Pakistan, the chief justice said: "We don't care about what is being said on the social media; [we] are the protector of the Constitution.”

A five-member larger bench of the Supreme Court, headed by Justice Bandial and comprising Justice Muneeb Akhtar, Justice Aijazul Ahsan, Justice Mazhar Alam, and Justice Jamal Khan Mandokhel, resumed hearing the reference on Monday.

The CJP said the political leadership should have the moral courage to accept the rights arises, the court had to step in, he added. The chief justice questioned why the apex court should deal with political matters when its decisions are subjected to criticism at the small public rallies of 15,000 people?

Expressing his concern over unnecessary criticism of the court decisions, the CJP said that the political leadership should have the moral courage to accept the court decisions with grace. "Constitution is sacred, hence it is incumbent upon us to protect it and we will continue discharging our constitutional obligations,” the CJ remarked.

Justice Jamal Khan Mandokhel observed that some accept court’s decision and some not, but it’s very easy nowadays to gather 10 to 15 thousand people and say “we don’t accept the court decisions”.

He observed that there is no lifetime disqualification in the Constitution for the members who defect and change their loyalties. “Whether the Parliament has intentionally not determined the lifetime disqualification for such members or erred, why do you want the SC to decide this when there is Parliament?" he asked. Justice Mandokhel noted that half of the people would comply with the apex court's order and half won't, as some of them favour lifelong disqualification and some are against it.

The judge asked Advocate General Islamabad Niazullah Niazi that according to his stance, the punishment for defecting members is lesser, but the question arises as to whether the court could increase the span of disqualification for such members.

“The court cannot rewrite the Constitution; Parliament is there, so go there; The Parliament itself will correct the error,” Justice Mandokhel told the law officer.

During the course of hearing, Mustafa Ramday, counsel for Balochistan National Party, raised the issue of alleged horse trading in the Senate elections as well as the issue of changing the Balochistan chief minister, saying that the political parties did not take action against the defecting members. He said the Centre kept silent over the regime change in Balochistan, adding "you have seen whatever happened in Islamabad and Punjab."

He pleaded for returning the Presidential Reference with the contention that the political parties did not want to take action in this regard but to engage the court in the matter. The CJ, however, said that they would give their opinion on the Reference and determine as to whether the Constitution was violated or not.

Babar Awan, the counsel for PTI chairman, said that he would not adopt the arguments made by the former attorney general, adding that the petition was not related to memogate. Justice Mandokhel said that now the gate would have to be closed down, to which Babar Awan said that there was an opportunity for closing the gate, but it was missed.

The CJ said that it seemed that the party of Babar Awan was also not serious in that matter. Additional Attorney General Chaudhry Aamir Rehman sought adjournment in the matter till the appointment of new attorney general. The CJ, however, said that former Attorney General Khalid Javed had already concluded his arguments and said that the court would proceed with the Presidential Reference, adding that if the stance of the new AG would be different, then he would also be heard, adding that the PTI chairman had also filed a petition to which Babar Awan told the court that notice should be issued in that regard.

He said that at present no new cabinet had been formed despite the fact that the new government had come into being, adding that in the absence of Attorney General, who would defend the government.

Advocate General Islamabad stated that the court, while interpreting Article 62(1(f), had given its verdict for lifetime disqualification, adding that after the Senate elections, votes were sold out; therefore, he submitted that it was the court to interpret the Constitution.

Justice Munib Akhtar observed that voting for the opponent party as well as giving votes in the light of constitutional amendment were two different things. Instead of voting to other party, one should tender resignation in a decent manner, and should come again by getting mandate from people.

Hasan Irfan Khan Advocate, representing Babar Murtaza Khan Advocate, ex secretary Lahore High Court Bar Association, while arguing before the court, submitted that under the scheme of Constitution, the President could not refer a question about disqualification, or its duration, to the Supreme Court as under Article 63(1)(q), the Constitution has not even given power to President to disqualify a member through an Ordinance.

Therefore, what cannot be done directly by the President could not be achieved indirectly by way of a question of law, the counsel submitted. He further contended that no confidence motion is an accountability of any prime minister, and members could actually lose confidence in the PM if his and his cabinet performance is not up to the mark.

He submitted that Article 63A provided three opportunities to a member to justify voting contrary to party lines, based on conscience, e.g. if party does anything which may change the salient features of the Constitution or attempt to convert it from a parliamentary democracy to Presidential form of government.

He argued that under the amended Article 63A, there is no automatic disqualification, as compared to previous provision, where there was a deemed defection, which clearly suggested that a member could justify voting against party lines and may not be called a defector.

The CJP said that the Constitution wants to end the culture of defection in politics. The top judge said that they have to see the results of constitutional violations and asked whether the violators of the Constitution be allowed to go unpunished or if they should be held accountable. Meanwhile, the court adjourned the hearing for today (Tuesday) at 1 pm.