Larger SC bench takes up presidential reference on Article 63-A

A five-member bench of the Supreme court is currently hearing the presidential reference seeking opinion on Article 63-A of the Constitution — which deals with the disqualification of parliamentarians over defection.

Chief Justice of Pakistan Umar Ata Bandial is heading the bench which also includes Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail.

Notices for the hearing have been issued to Pakistan Tehreek-i-Insaf's lawyer Ali Zafar, PPP's lawyer Farooq H Naek, PML-N's lawyer Makhdoom Ali Khan and Jamiat Ulema-i-Islam-Fazl's lawyer Kamran Murtaza, as well as the advocate general for Sindh, Islamabad inspector general of police, interior secretary and president of the Supreme Court Bar Association (SCBA), among others.

Earlier, on Monday, a two-member bench of the apex court comprising CJP Bandial and Justice Akhtar took up the presidential reference and declared that a larger bench would hear the case.

Main questions in the reference

• Will "dishonest" MNAs be allowed to vote?
• Will the defecting members' vote be counted, given equal weightage?
• Will the defectors be disqualified for life?
• Measures that can be taken to prevent defection, floor crossing and vote-buying

Replies submitted to court

On Thursday, the SCBA submitted a written reply to the apex court ahead of today's hearing in accordance with the court's directives.

In its reply, the SCBA said that the votes of MNAs "cannot possibly be construed as a collective right of a political party", citing Article 95 of the Constitution, which deals with the procedure to bring in a no-confidence motion against the prime minister.

The association also said that Article 63-A, which deals with disqualification of a lawmaker over defection, cannot "control, restrict or limit the right of MNAs to participate in a vote of no-confidence against the prime minister".

It added that Article 63-A also does not restrict the right of MNAs to freely participate in proceedings.

"Any limitation on the MNAs' right to participate in proceedings under Article 95 of the Constitution, in addition to the consequences envisaged by Article 63-A of the Constitution, would be against the express constitutional command. Moreover, to restrict the right of MNAs to vote in proceedings under Article 95 of the Constitution would also amount to restriction on the citizens' right to be governed by a truly representative government," the SCBA said.

Outlining the procedure for voting on the no-trust move, the SCBA said that the rules showed that the Constitution and the Rules of Procedure "do not envisage a scenario whereby an MNA is restrained from casting his vote or where such a vote is not counted".

"Therefore, the question of pre-emptive action under Article 63-A cannot arise," the association said, adding that powers under Article 63-A could not be exercised by a party head under the "mere apprehension that a member may defect".

The SCBA also noted that there was no basis to construe disqualification under Article 63-A as permanent, highlighting that the term "disqualification" had not been used. It said that the consequences of Article 63-A for a defecting member "must remain limited to his removal from office as a member of the relevant House".

Separately, in its reply the PML-N said that Articles 63-A and 95 were clear and stated that every member had the right to vote. The party added that the votes cast by each member of the assembly should be counted and termed the presidential reference "premature and unnecessary".

The PML-N also stated that the apex court had the right to interpret the Constitution, not amend it.

The PPP stated that the presidential reference did not fall under the ambit of Article 186, which is related to the advisory jurisdiction of the SC.

SCBA becoming subsidiary of one political party: Fawad

Before the hearing started, federal Information Minister Fawad Chaudhry said that PML-N had been running a campaign on social media against the SC bench by calling it biased.

"They have always adopted the approach of 'my way or the highway' and we strongly condemn it," he said while speaking to the media outside the apex court alongside Energy Minister Hammad Azhar and Special Assistant to the Prime Minister for Political Communication Dr Shahbaz Gill.

The minister also criticised the SCBA for "becoming a subsidiary of a single political party".

The Supreme Court bar, he pointed out, was constituted from the vote of all parties and it should, therefore, not become hostage to the PML-N. He urged bar councils across Pakistan to speak up against them.

The reference

Attorney General of Pakistan (AGP) Khalid Jawed Khan had submitted the reference seeking the SC's opinion on Article 63-A of the Constitution on March 21.

The reference, a copy of which is available with Dawn.com, presents two interpretations of Article 63-A and requests the court to advise which of them should be followed.

According to the first interpretation, "khiyanat (dishonesty) by way of defections warrants no pre-emptive action save de-seating the member as per the prescribed procedure with no further restriction or curbs from seeking election afresh."

While the second interpretation "visualises this provision as prophylactic, enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralising the effects of vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct."

The development came days after several PTI lawmakers, who had been 'in hiding' at the Sindh House in Islamabad, revealed themselves — proving that the opposition's claims of having "won over" members of the ruling coalition were indeed true.

Prime Minister Imran Khan and some cabinet ministers had earlier accused the opposition of indulging in horse-trading ahead of the crucial vote on the no-confidence resolution, disclosing that the capital's Sindh House had become a centre for buying and purchasing members.

But while government members continued to claim that these dissidents had "sold their souls for money", a number of TV channels that sent their teams into Sindh House to verify the claims were faced with nearly a dozen PTI members, who claimed that they had developed differences with the Imran Khan-led government and were going to vote in "accordance with their conscience".

Subsequently, the government had decided to file a presidential reference for the interpretation of Article 63-A with Information Minister Fawad Chaudhry saying the top court would be asked about the "legal status of the vote of party members when they are clearly involved in horse-trading and change their loyalties in exchange for money".

The presidential reference was filed under Article 186 of the Constitution, which is related to the advisory jurisdiction of the SC.

In the reference, President Dr Arif Alvi asked the apex court whether a member who "engages in constitutionally prohibited and morally reprehensible act of defection" could claim the right to have his vote counted and given equal weightage or if there was a constitutional restriction to exclude such "tainted" votes.

He also asked the court to elaborate whether a parliamentarian, who had been declared to have committed defection, would be disqualified for life.

"What other measures and steps can be undertaken within the existing constitutional and legal framework to curb, deter and eradicate the cancerous practice of defection, floor crossing and vote-buying?" the reference further asks.

"As happened on many occasions in past, the stage is yet again set for switching of political loyalties for all sorts of illegal and mala fide considerations including vote-buying which by its very nature rarely leave admissible or traceable evidence," the reference states.

It adds that some of the "presently defecting [MNAs] have even publicly admitted to defection in interviews to the media with evident pride and further commitment to stay engaged in this immoral trade".

It cautions that unless horse-trading is eliminated, "a truly democratic polity shall forever remain an unfilled distant dream and ambition".

"Owing to the weak interpretation of Article 63-A entailing no prolonged disqualification, such members first enrich themselves and then come back to remain available to the highest bidder in the next round perpetuating this cancer."

Article 63-A

According to Article 63-A of the Constitution, a parliamentarian can be disqualified on grounds of defection if he "votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, in relation to election of the prime minister or chief minister; or a vote of confidence or a vote of no-confidence; or a money bill or a Constitution (amendment) bill".

The article says that the party head has to declare in writing that the MNA concerned has defected but before making the declaration, the party head will "provide such member with an opportunity to show cause as to why such declaration may not be made against him".

After giving the member a chance to explain their reasons, the party head will forward the declaration to the speaker, who will forward it to the chief election commissioner (CEC). The CEC will then have 30 days to confirm the declaration. If confirmed by the CEC, the member "shall cease to be a member of the House and his seat shall become vacant".