Supreme Court open to critics too: CJP Justice Umer Ata Bandial

ISLAMABAD: Chief Justice of Pakistan Justice Umer Ata Bandial on Thursday observed that the Supreme Court is open to its critics, as it stands for supremacy of the Constitution and is determined to provide justice on the basis of equality to everyone.

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

Senator Raza Rabbani, as a parliamentarian, told the court that after the Presidential Reference, the constitutional institutions had violated the Constitution. He said that criticising democratic institutions with a mala fide intention yields two types of results -- either the country leads to fascism or becomes the Soviet Union.

The chief justice, however, observed that criticism does not matter, adding that the court's job is to treat everyone equally. He said that the Pakistan People’s Party has made valuable sacrifices for the sake of democracy and always supported and cooperated with the institutions.

“Courts are open to critics, as their job is to dispense justice to everyone,” Justice Bandial said, adding that the court will continue to serve its purpose despite criticism. Raza Rabbani, while opposing lifelong disqualification of a member on defection, said the Article 62(1)(f) cannot be applied on defection. He said that the election commission can examine the declaration given by the party’s head against its member, adding that being the competent authority, the commission has to satisfy that the declaration is free of any doubt and suspicion.

He said that it is not necessary that a person disloyal to the party is dishonest. He said that the real oath of a member is that when he or she takes it on the floor of the house. The oath while filing nomination papers relates to affiliation with a party. He submitted that members are afraid of Article 63-A that bars them from not voting against the party policy.

Rabbani said the former attorney general was citing examples of Western democracies which were quite irrelevant to the case here, adding that political parties could not become institutions in Pakistan. He said that there are different values in Western democracies where minister resigns after a train incident but the situation here was altogether different.

“A few days ago, the former prime minister did not resign but he was ready to violate the Constitution,” Rabbani said, adding that defection does not imply disqualification but de-seating.

Justice Muneeb Akhtar, while addressing Rabbani, said that he had wept while voting for military courts and in his speech he had stated that vote is a trust of the party and he did not express any fear as well. "Had it been a breach of trust if you had resigned?” Justice Muneeb asked Rabbani.

Rabbani replied that he could have faced the situation but he had not the moral courage to resign. Barrister Ali Zafar, counsel for the president, argued that two basic questions have been raised in the Presidential Reference -- punishment for defection and disqualification for life under Article 63-A. He said that the former attorney general had stated in his arguments that Article 62(1)(f) should also be read with Article 63-A as voting against the party direction is against the Constitution.

Justice Jamal Khan Mandokhail asked the counsel about consequences of violating the Constitution and whether one could be disqualified for life for its violation and how a dissident member could be barred from voting, adding that after voting only the party head will take action against his member.

Consequences will be different, Ali Zafar replied, adding that after corruption of a member is proved for voting against the party wishes, then Article 62(1)(f) will apply. He recalled that former prime minister Zulfikar Ali Bhutto had two-thirds majority and he was quite a wise politician and during his era Article 96 was inserted into the Constitution, which stipulated that if anyone voted against the majority party head, that vote would not be counted.

Justice Ijazul Ahsen asked if a member avoids casting vote, is it tantamount to defection. Zafar said that it also has consequences. "You mean that Article 63-A allows vote casting but not counting," the chief justice asked.

Zafar said that the vote that brings about a change in the house will be considered illegal, adding that the main purpose of Article 63-A is to discourage horse-trading. During the hearing, Additional Attorney-General Aamir Rehman told the court that the Federation will also give its formulation, adding that till date the new cabinet has not yet taken it into account the instant matter. Meanwhile, the court adjourned the matter for Friday (today) at 10:30am.