Chief Justice of Pakistan (CJP) Umar Ata Bandial on Wednesday said Article 63-A clearly stated that the defection from a party would be unconstitutional.
The CJP made these remarks while heading a five-member larger SC bench, which heard the presidential reference seeking the court’s opinion on Article 63-A of the Constitution and a petition filed by the Supreme Court Bar Association (SCBA) against public gatherings of the opposition and the government in the Federal Capital ahead of the no-confidence motion.
The bench comprised Justice Ijaz Ul Ahsan, Justice Muneeb Akhtar, Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhel. During the course of proceedings, Makhdoom Ali Khan, counsel for the Pakistan Muslim League-Nawaz, said the reference was non-maintainable. The court always heard a presidential reference out of respect for the office, but it was not legally bound to do so.
He said the question asked in the reference was political and not legal. It was not appropriate to seek answer of every question from the court. The president had asked the court how to prevent the horse trading, and did not seek its opinion about the procedure to halt the menace, he added. The reference, he said, also cited that votes trading was done in the Senate election. Upon this, the CJP, while addressing the counsel, said that it appeared from his arguments that defection from a party was not bad. The counsel responded that it was not his contention.
Justice Ijaz said according to one viewpoint, defection from a party was part of the democracy, while another opinion stated the deliberate deviation from the party line was betrayal. According to Article 63-A, he said, defection from the party was a wrongful act.
The counsel said according to the president, malpractices and misdeeds were carried out in the Senate election. Both the president and the prime minister were aware about the horse trading, but they did not take any action, he added.
Justice Muneeb Akhtar said an assembly member was supposed to cast his / her vote as a voter in Senate election, but casting a vote for money in the Senate election was a crime.
Justice Jamal Khan said the party chief could give a declaration with regard to defection as per Article 63-A. There was no reference about disqualification without hearing the member, he added. Makhdoom Ali Khan argued that the consequences of Article 63-A could not go beyond what was in the Constitution. He said he was agreed with the observation of Justice Ijaz ul Ahsan.
Upon this, the chief justice asked horse trading had happened earlier and what action was taken in that regard. The defectors used to be taken back in the parties, it was likely that the party pardoned to the member who had voted against the party line. The court, he said, was for enforcement of the Constitution and to make its articles effective and it had to intervene if the system was weak.
The counsel said it was not necessary that defection from the party was based on immorality and corruption, as it might be for a noble cause. He said a defecting member would submit reply in response to a show cause notice issued to him / her by the party’s chief. The show cause would be withdrawn, if the party head were satisfied over the reply.
He said the president had filed the reference after the no-confidence motion was submitted (in the National Assembly). According to the Constitution, the NA session was required to be summoned within 14 days of the submission of the no-trust motion, he added. Makhdoom Ali Khan said he was only describing facts, and not talking politics. The judges should not be influenced by the outside matters, he added.
Addressing the counsel, the CJP asked whether he thought that the court proceedings had any influence over political matters. Whether he wanted that the court should not use its advisory powers in the present circumstances, he added. Justice Jamal said Article 63-A would be invoked after casting of the vote by a member (against the party line). He asked how the president knew that the government party members were going to defect.