— No interference to halt the process of Article 95
— Opposition flays Speaker Qaiser for ‘delaying’ NA session
— Never ignore remarks of Justice Munib: Khawaja Haris
ISLAMABAD: After associating with a party, the vote of an MP during a no-confidence trial was a “collective right” of that legislator and their party, and that an individual vote, violating the party’s position on the matter, enjoyed no “status” under Article 95-II of the Constitution, the Supreme Court said on Monday.
The Supreme Court formed on Monday a five-member larger bench on a presidential reference seeking its opinion on Article 63-A of the Constitution, which deals with the disqualification of parliamentarians over defection.
Names of the judges who will constitute the bench are yet to be finalised.
The reference was submitted by Attorney General of Pakistan (AGP) Khalid Jawed Khan earlier today.
Separately, Chief Justice of Pakistan Umar Ata Bandial observed that there should not be any interference to halt the process of Article 95 of the Constitution which permits a no-confidence motion against the incumbent prime minister.
The two-member bench that also includes Justice Munib Akhtar made these remarks while hearing a petition of the Supreme Court Bar Association (SCBA) that sought the intervention of the apex court to prevent “anarchy” on the day of the no-trust vote.
SCBA President Muhammad Ahsan Bhoon had asked the court to restrain “political parties from holding public meetings in Islamabad before voting on the no-confidence motion”.
The petition had also prayed the court to stop government agencies from arresting or detaining MNAs and to stop public gatherings in the federal capital which prevented the assembly members from reaching parliament.
“The purpose of Supreme Court proceedings is that the right of lawmakers [to cast vote] must not be defeated,” CJP Bandial said.
The bench also refused to intervene in the matter concerning the delay of the National Assembly session by the speaker. It advised the counsels representing the opposition leaders to raise this matter in parliament.
In a reference to the attack on the Sindh House by PTI workers, the court said it expected that the Sindh government’s version will also be included in FIR.
Larger bench for presidential reference
The court also issued notices to all major parties on the presidential reference as a larger bench would be expected to hear the presidential reference on March 24.
During the hearing, Attorney General for Pakistan Khalid Javed Khan gave an undertaking that all state functionaries would act strictly in accordance with the Constitution and the law
A two-judge bench, comprising Chief Justice of Pakistan Umar Ata Bandial and Justice Munib Akhtar, took up the reference along with a plea filed by the Supreme Court Bar Association (SCBA) seeking the top court’s intervention to prevent “anarchy” ahead of the no-trust vote.
Addressing a petition filed by the Supreme Court Bar Association (SCBA) against public meetings by the government and the opposition parties ahead of the no-trust vote against Imran Khan, Justice Munib Akhtar said the court had made similar observations in cases involving former prime ministers Benazir Bhutto and Nawaz Sharif.
Never ignore remarks of Justice Munib: Haris
Commenting over the SC proceeding, Khwaja Haris told Pakistan Today he had also failed to understand the remarks of Justice Munib Akhtar as reported in the media.
“But remember, you can’t ignore remarks or observation of Justice Munib Akhtar. Justice Munib Akhtar delves very deep into an issue and one cannot just ignore his remark. Hence it is very important to consider his remark. Prima facie, Justice Munib says that all the MPs of a party cannot vote in violation of the decision of the party head decision. But Article 63-A and 95 provide that if anyone casts his vote against party line would be disqualified,” he added.
“According to the constitution, the vote has to be cast by Member of the Parliament which is an individual act. The Constitution says that majority vote would vote decide per the party leader. However, if anyone votes in violation of party policy, he/she may be disqualified. But the disqualification comes later and it doesn’t bar any MP to cast his vote. The constitution says that if defection is accepted he will cease to be a member. Those PTI MPs who rebelled knew that they could be disqualified if voted against the party decision but each vote would be counted. There is no law not to bar anyone to cast vote.
When asked should we read the 18th Amendment and 14th Amendment regarding the powers of the party head, Khwaja Haris said both amendments don’t affect Article 63-A as this proviso exclusively deals with the defection for voting for PM and finance bill.
Hamid Khan downplays remarks
Hamid Khan, however, downplayed the observation and said that it is just an observation.
“This is mere a remark and not a judgment. The final judgment would be made by a bench. Discussion over an observation tantamount to preempting a judgment and it may affect a subjudice court proceeding,” he asserted.
Lifetime disqualification for defecting MPs?
The remarks of Justice Munib Akhtar evoke the possibility of lifetime disqualification for the MPs who vote against party head’s direction. Legal experts say that the remarks of Justice Munib Akhtar reflect the possibility of lifetime disqualification for defecting MPs.
According to the presidential reference submitted in the Apex court, 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 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 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.
Pakistan People’s Party leader and seasoned lawyer Aitzaz Ahsan also has said that a legislator has to sacrifice assembly seat after voting against the party’s policy and the extent of disqualification has not been determined “but it could be close to ineligibility for life”. Hence, the court may decide the matter according to the plea made in the reference.
Opposition leaders attend court proceedings
Pakistan Muslim League-Nawaz (PML-N) President Shahbaz Sharif, Pakistan Peoples Party (PPP) Chairman Bilawal Bhutto-Zardari, Jamiat Ulema-i-Islam-Fazl (JUI-F) chief Maulana Fazl ur-Rehman, Balochistan National Party-Mengal (BNP-M) chief Akhtar Mengal and other senior leadership of the opposition parties appeared before the court.
Bilawal, while talking to reporters, reiterated they are continuing their political struggle and said “one hopes that political decisions are taken as per law”.
Meanwhile, Sharif said they will follow the apex court’s decision about rallies.
During the last hearing of the petition, while referring to the storming of Sindh House by workers of the ruling Pakistan Tehreek-i-Insaf (PTI) party, Chief Justice Bandial remarked the incident was against freedom of expression and protest.
The chief justice further said that members and institutions should be provided security as per the constitution and warned that storming of a public property is a bailable offence.
The court further remarked that the political process should be held as per law and constitution of the country and hoped that all political sides will show restraint.
Supreme Court had summoned a report from the Islamabad police chief and four political parties.
‘SPEAKER VIOLATED CONSTITUTION BY DELAYING SESSION’
Meanwhile, talking to reporters outside the Supreme Court, Sharif and Bilawalsaid National Assembly Speaker Asad Qaiser violated the Constitution by “delaying the session” of the House.
Sharif questioned what stopped the speaker from convening the session earlier? He said the Opposition has delayed the long march due to the meeting of the Organisation of the Islamic Countries (OIC).
He claimed the speaker delated the session consciously.
Bilawal said the government has been running away from the no-confidence vote. “The government tried to terrorise the MPs by ‘attacking’ the Parliament Lodges,” he added.
He heaped praise on the court for taking notice of the attack on Sindh House in Islamabad. He also advised Qaiser to take decisions wisely otherwise “these people” will trap him.
He said the judiciary is on the side of the Constitution and law and will not take any political decision.