Member not faithful to his party ‘dishonest’: CJP

ISLAMABAD: The Chief Justice of Pakistan, Umer Ata Bandial, on Wednesday observed that loyalty is the basic constitutional principle, hence if a member is not faithful to his party, he is dishonest and his disqualification on dishonesty is normal.

A five-member bench, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Ijazul Ahsen, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, heard the Presidential Reference seeking interpretation of Article 63-A of the Constitution.

Farooq H Naek, counsel for the Pakistan Peoples Party, continued his arguments. During the hearing, Chief Justice Umer Ata Bandial observed that the main purpose of Article 63-A was to ensure loyalties to the party by its members adding that the loyalty of the member has been linked in the Article on four instances.

"Showing disloyalty to the party is in fact dishonesty," the Chief Justice remarked adding that it was not necessary that they should confine themselves to Article 63-A for the purpose of defection but they will have to look at the Constitution as a whole.

"Whosoever is disloyal to the party, he is dishonest," the Chief Justice remarked but again raised the issue of non-serious attitude of political parties, avoiding taking action against the dissident members, saying instead they were taken back in the party.

Justice Munib Akhtar, another member of the bench, observed that the parliamentary party must give its direction to its members to be faithful and to abide by its policy as well. "A member of a political party is a member of whole of the party and he cannot consider himself/herself as a free bird, hence he is bound by the party’s principles and policy," Justice Munib Akhtar remarked.

The judge further elaborated that defection from a party is like cancer as its cells destroy the inner parts of the body, hence defecting from the party destroys the party. "When you declare yourself as a member of the party on oath, then defecting from that party is dishonesty," Justice Munib added.

Justice Ijazul Ahsen, another member of the bench, observed that if defection from the party is dishonesty, then there should be a standard for the law. He further observed that if a person says on oath that he belongs to a party while filing his nomination papers for the elections, then he was bound to remain loyal to his party. At the same time, if any member has any differences with his party, then he should resign from the party in a dignified manner, go to the electorate, elect himself and come back again.

Earlier, continuing his arguments, Farooq H Naek submitted that on defection a member loses his membership of the parliament but was not disqualified from contesting elections. He recalled that in 1997, through the 13th Constitutional Amendment, Article 58(2)(b) was abolished but later on military dictator Pervez Musharraf restored it through the Legal Framework Order (LFO) adding that during the 18th Constitutional Amendment in 2010, the said article was again abolished. He submitted that during the 14th Amendment, Article 63-A was inserted into the Constitution giving wide powers to the party head while the Election Commission was not empowered to reject the decision of the party head.

Similarly, he said that Article 63-A was further amended through the Presidential Order in the year 2002, decreasing the powers of the party’s head while in the 18th Amendment, the powers of the party head were given to the parliamentary party adding that the Supreme Court was empowered to give the final decision. He further said that under the 18th Amendment, the election commission was required to give the decision in 90 days with regard to the reference filed on Article 63-A of the Constitution. He said that the length of disqualification of the MP is given in Article 63 of the Constitution. The counsel contended that the present Presidential Reference is not against Article 63-A but related to only clause 4 of Article 63-A of the Constitution.

When Farooq H Naek said that nobody could be made a slave by talking in favor of the party or against, Justice Ijazul Ahsen asked the counsel if any person gets government job, then whether he is a slave. "Every person after being appointed on government job has to abide by the rules and regulations prescribed in the condition for appointment."

Naek, however, replied that if a member violates the party’s discipline, then punishment is there in Article 63-A. Justice Muneeb Akhtar said that violating the party's oath is dishonesty and asked as to what does cancer means adding that cancer destroys the whole body and same is the situation of a party as defection from party was tantamount to cancer.

Justice Ijazul Ahsen asked the learned counsel as to whether a person cannot be disqualified on dishonesty to which Naek said that dishonesty is a rigid word adding that it has not been mentioned in this regard in Article 63-A.

Justice Jamal Khan Mandokhel asked the counsel that if a member of the party resigns, then how the Prime Minister will be elected. Naek said the persons after resigning could come again after contesting election adding that the consequence for both disloyalty and dishonesty was mentioned in the Constitution. Naek said that a dissident member may lose his seat in such a situation but he cannot be disqualified adding that nothing is mentioned in Article 63 about the length of disqualification.

Chief Justice Umer Ata Bandial remarked that a person ceased to be a member of the parliament on account of dishonesty and he also ceases to be qualified for next election. "It is not mentioned anywhere," Naek replied. "Show me if it is written anywhere and I will leave the rostrum if it is," Naek told the Chief Justice.

The counsel further submitted that loyalty is there only in kingship and even if it is to be accepted that a member has changed loyalty, then he could only be de-seated but not disqualified adding that by changing loyalty, the member could contest the by-election, adding that only punishment for changing loyalty is only de-seating from the parliament.

Meanwhile, chief justice told Naek that he has given good arguments and has covered a lot of grey areas. Advocate General Sindh Salman Talibuddin told the court that members accused of taking money for selling their votes could be asked for giving resignations adding that the court is unnecessarily being dragged into political matters. He said that the timing of the instant Presidential Reference is suspicious adding that by invoking Article 62(1)(f) on the dissident members means end of Article 63-A, which is a step toward a mature democracy.

Meanwhile, the Chief Justice asked as to whether PTI counsel Babar Awan will give his arguments to which Barrister Ali Zafar, counsel for President Arif Alvi, told the court that Babar Awan will raise some constitutional points on the petition of PTI. PPP leader Senator Raza Rabbani told the court that he will also answer the queries asked by the court. Later, the court adjourned the hearing for today (Thursday).