| SC orders arrests in Sindh House attack
BY Uzma Zafar
ISLAMABAD: Supreme Court Justice Ijazul Ahsan observed on Monday that “a few lawmakers switching loyalties to change a government at any time is a joke”.
He made the observation during the hearing on a presidential reference seeking the top court’s opinion on the interpretation of Article 63-A, which is related to the disqualification of parliamentarians over defection.
A five-member larger 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, is hearing the petition. The reference was submitted by the Attorney General of Pakistan (AGP) Khalid Jawed Khan on March 21.
Meanwhile, the chief justice observed that even if a member was de-seated and the no-confidence motion against the prime minister was unsuccessful, the ruling party “still loses the majority”.
Attorney General of Pakistan (AGP) Khalid Jawed Khan replied that there was a separate procedure if that was the case.
Justice Munib Akhtar observed that the article related to lifetime disqualification was applicable when a member hid information in his nomination papers, questioning how a lawmaker could be disqualified for life without misconduct proceedings being initiated against him.
Earlier during the hearing, AGP Khan referred to a Supreme Court verdict from 2018 in which the SC had asked all candidates to submit an affidavit along with nomination papers.
The court had declared that nomination papers without the affidavit would be incomplete, he said, adding: “In the law, there was no requirement of an affidavit. It was submitted on orders of the court.”
The court had said in the verdict that the move was aimed at ensuring transparency in the election process, the AGP informed the bench.
Justice Mandokhail asked the attorney general whether he believed there was something “missing” in Article 63-A, to which he replied that the article in question could not be read alone.
The chief justice observed that the Supreme Court’s 2018 verdict — earlier mentioned by the attorney general — talked about the credibility and sanctity of the elections.
“A five-member Supreme Court bench had referred to Articles 62 and 63 to maintain transparency, reiterating that members of political parties were bound by party discipline,” the AGP said.
At this, Justice Ahsan observed that Article 63-A was related to de-seating, questioning how it could be linked with lifetime disqualification.
Different forums were available to take action against those who changed loyalties, he noted, observing that linking Article 63-A to lifetime disqualification was “merely a hypothesis”.
For his part, the AGP argued that the lifetime disqualification clause was applicable where malafide intention was involved. Justice Ahsan remarked that the question was what dishonesty was committed and against whom.
“There are three players in the entire process. The voter, the party and the member who is elected. The member who wins on the party’s ticket promises to follow the party’s mandate,” the AGP said.
Here, Justice Mandokhail questioned whether there was a punishment for resigning, to which the AGP responded that the “problem was no one was resigning”.
The judge cautioned the attorney general to limit his arguments to the presidential reference the court was hearing. “Don’t tangle the Supreme Court in politics,” he warned.
“Is de-seating under Article 63-A not enough?” he asked.
The chief justice remarked that members “will have to face the consequences of violating the party policy”. He observed that Article 63-A states that the parliamentary membership of the MNA will be terminated.
“You want to determine the period of disqualification,” Justice Bandial said. Disqualification under Article 62 (i)(f) required a verdict, he observed, questioning whether an MNA could be disqualified for up to five years under Article 63-A.
Justice Ahsan, however, asked how Articles 63-A and 62 (i)(f) could be linked. “Isn’t it necessary to prove taking bribes on a forum?” he inquired and then observed that Article 62 (i)(f) iswas applicable on taking bribes.
AGP Khan argued that violation of Article 63-A was “legally mala fide”.
The chief justice asked the AGP whether a lawmaker could be disqualified for three years or five years under Article 63-A or if it was temporary. “Are you seeking lifetime disqualification for political dishonesty?”
Meanwhile, Justice Akhtar observed that both the constitutional provision of lifetime disqualification and Article 63 were different.
He remarked that lifetime disqualification is related to false information and statements in nomination papers. “Action against a dissident member is a matter for after election.”
Justice Akhtar pointed out that the verdict the AGP was referring to was related to pre-election matters, asking how it could be applied post-election.
Election laws could not be above the Constitution, AGP Khan argued.
“The Election Commission of Pakistan (ECP) is present to take action against a dissident member,” Justice Mandokhail noted.
He further said the ECP should be allowed to decide the matter once the party’s head submitted a declaration. “When the procedure had been clarified in the law, what do you want? Perhaps some people’s conscience may truly have been awakened. If the Election Commission’s decision is [challenged] in the Supreme Court, then we will see.
Subsequently, Justice Miankhel questioned how the length of disqualification would be decided.
