SC hears presidential reference for interpretation of Article 63-A

Islamabad: Larger bench of Supreme Court of Pakistan is conducting a hearing on presidential reference seeking interpretation of Article 63-A of the Constitution – which deals with the disqualification of parliamentarians over defection 

During the hearing, a five-member bench of the SC comprising Chief Justice of Pakistan (CJP) 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.

Supreme Court asked the Attorney General whether provinces should also be made a party in the reference. AGP said that provinces have nothing to do with the no-confidence motion as no move has been submitted against any chief minister in the country.

However, the court issued notices to all provinces and political parties and remarked that it wants all parties to stand in defense of the constitution. CJP while directing provinces to submit their written replies said that conducting a hearing on the presidential reference will be easier after these replies.

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.

Meanwhile, Pakistan Muslim League-Nawaz (PML-N) said in its response submitted in the SC that Article 63A and Article 95 are clear and every lawmaker has the right to vote.

The party said that the vote of every MNA will be counted and that filing of the presidential reference is a premature and unnecessary move.

The reply further said that the apex court "has the authority to interpret the Constitution but not to amend it."

On the other hand, Jamiyat Ulema-e-Islam-Fazl (JUI-F) also submitted its reply to the SC and stated that the Speaker of the house cannot be given the authority to reject the vote of members of the Parliament.

JUI-F also claimed that if the Members of the National Assembly (MNA) are disqualified for life on the grounds of voting against their party, it will further weaken the already weak democracy of Pakistan.

The court should refrain from overlapping the supremacy of the Parliament, JUI-F stated in its reply.

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

Earlier on Monday, President Dr Arif Alvi filed the reference with the Supreme Court seeking its opinion on Article 63-A of the Constitution, reports APP. The reference seeks the apex court’s guidance on two interpretations of Article 63-A and which one should be adopted and implemented to achieve the constitutional objective of curbing the menace of defections and purification of the electoral process and democratic accountability.

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, “visualizes 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 neutralizing the effects of the vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct.” The reference stated if the constitutional disapproval and prohibition against defection was effectively enforced with deterrence for the future as well, many such members should stand disqualified for life under Article 62(1)(f) and would never be able to pollute democratic streams.

“It was barely a year ago in the wake of elections for the Senate that compelling evidence in the form of audio and video recordings showing horse-trading emerged leaving the identities of perpetrators in no doubt yet nothing meaningful has been done in that respect till date,” the reference read.

The reference stated “the questions of law of public importance revolving around the interpretation of Article 63A of the Constitution have arisen in the context of the unending malaise of floor crossing and defections that have sullied and damaged the purity of the democratic process in the country for decades. 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. Some of the presently defecting members have even publicly admitted to defection in interviews to the media with evident pride and further commitment to stay engaged in this immoral trade as the prima facie consequence is innocuous while gains in cash and kind may be colossal without any possibility of a loss of membership of Parliament for life.”

The reference added, “It is evident from the overall constitutional scheme that defection/floor crossing is a morally reprehensible and destructive act which shake the confidence of the public in the democratic process. Owing to the weak interpretation of Article 63A 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.”

“There is presently no specific period of disqualification provided in respect of members found guilty of defection. This Court has observed in many cases that defection or floor crossing is nothing short of cancerous to the entire body politic and it destroys the spirit of democratic governance. Therefore, there can be no valid or cogent reason or justification to treat this cancer as an innocuous and pardonable requiring no more than de-seating of the incumbent and allowing him fresh opportunity to get re-elected soon thereafter” it added.

“Hon’ble Court may be pleased to answer the questions of law so as to purify and strengthen the democratic process worthy of people’s respect and trust and forever eradicate the menace of defections,” the reference concluded.