ISLAMABAD: The Supreme court on Tuesday observed that defection is dangerous for the system as it ultimately leads to toppling of an elected government through unfair means and puts future of 22 crore people of the country at stake.
A five-member bench, headed by Chief Justice of Pakistan Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhel, resumed the hearing of the Presidential Reference seeking interpretation of Article 63-A of the Constitution.
Babar Awan, counsel for the Pakistan Tehreek-e-Insaf, concluding his arguments submitted that defection is a heinous crime, adding that the Supreme Court is the last hope to decide about Article 63-A and people are looking up to it.
During the course of hearing, Justice Ijazul Ahsen observed that a culture has been developed in the country wherein after losing elections search for buying the loyalties of lawmakers begins to topple a government. The judge observed that governments are toppled with money while buying loyalties of a few people and putting the future of 200 million people of the country at stake. "The process of toppling a government by selling and purchasing lawmakers should be stopped,” Justice Ahsen remarked.
Babar Awan submitted that in an Islamic state only honest people are eligible to lead, adding that punishment for defecting from a party is a lifetime disqualification. Justice Mazhar Alam Khan Miankhel, however, asked if a person could be disqualified under Article 63-A while under 63(g) disqualification is only for five years. "In my view, violation of Article 63(1)(g) is a heinous crime, as it relates to the ideology, sovereignty of the country and defamation of judiciary and armed forces."
Justice Jamal Khan Mandokhel observed that punishment for defection has been mentioned in the Constitution and it is for the court and election commission to decide about the fate of dissidents members. "How the court could enhance punishment for defection,” Justice Mandokhel questioned, adding that if the basis of defection is corruption, laws on corruption are there and a reference could be filed to the National Accountability Bureau (NAB). The judge observed that after filing a case, declaration will come from the court and a person could be disqualified for lifetime. Chief Justice Umer Ata Bandial observed that the court interprets the Constitution under set principles but cannot re-write it.
Babar Awan submitted that this is not justice that a person is de-seated and then after 15 days he gets elected again to the assembly. Justice Mandokhel, however, questioned if the court could enhance punishment for a single day. The judge said that Article 63-A provides a forum for action against dissident members and its punishment is de-seating.
Babar Awan contended that Article 63-A disqualifies a dissident member for lifetime, adding that a person failing to pay utility bills is not competent to be elected. The counsel further submitted that when term is not determined, one can be disqualified forever.
"Whether permission could be granted to 26 members for defecting from the party and if so then the majority party will become minority, adding that 53-A has been inserted as a surgical strike in the 18th Constitutional Amendment for curing the cancer,” he questioned.
He submitted that after de-seating and being elected to Parliament after 15 days is a joke with Article 63-A, adding that a person of tainted character is not eligible for assembly membership.
Justice Mandokhel, however, asked who will determine good or bad character, adding that as per arguments of the counsel, a person is even not eligible for assembly membership for failing to pay utility bills but the question arises if a person pays the bill before elections, he is still not eligible for assembly membership. “The Parliament will have to make legislative reforms while doors for repentance remain open,” the judge remarked. He said one wants an independent judiciary while the other says judiciary subservient to the Constitution is required.
Justice Ijazul Ahsen observed that disqualification of a lawmaker would end after paying the outstanding dues, adding it has been mentioned in the Constitution the vote of a dissident member will not be counted.
Azhar Siddique, counsel for the PMLQ, while arguing cited different surahs from the Holy Quran and submitted that the country’s system revolves around the preamble of the Constitution, Objective Resolution as well as Article 277 of the Constitution. He said that every candidate files an affidavit with nomination papers.
Justice Mandokhel, however, questioned if a candidate files an affidavit affirming that he will abide by every action of the party leadership. The judge recalled that two members of the PMLQ had voted against the party policy, however, no reference was filed by against them by the party leadership. "If the party leadership wants punishment for defection of two of its members," the Judge asked. "This is not my case but my premise is that the vote of dissident members will not be counted," the counsel replied.
When the PMLQ counsel referred to the Charter of Democracy, Justice Mandokhel said if the Parliament had consented to it, it would have been made part of the Constitution then.
The counsel further submitted that 63-A is a protective wall against the vote of no-confidence, adding that the Constitution has empowered the party leader to determine the character of its members. He further submitted in the UK, resignation is submitted even on corruption of a penny but here when courts disqualify someone for not being honest and Sadiq and Ameen, they don't accept the decision.
Justice Jamal Khan Mandokhel, however, observed that corruption and defections are two separate things and separate laws are there to deal with them, adding that defection can be victory for one party but loss for the other. "Maybe one member cannot further move forward with the party owing to its wrong policies," the judge remarked.
Chief Justice Umer Ata Bandial questioned under what law the vote of a dissident member cannot be counted. The chief justice asked the PMLQ counsel to conclude his arguments by Wednesday (today) within 15 minutes and convince the court as to how the vote of a dissident member cannot be counted and adjourned further hearing.
APP/SABAH adds: Justice Mandokhail asked whether an independent lawmaker took an oath when they joined a political party? He also asked does the independent lawmaker swear to abide by the party s each and every decision? Having said that, Justice Mandokhail remarked the deviation from party policy could also be in the interest of the country.
