A five-member bench of the Supreme Court of Pakistan has issued a ruling, in advisory jurisdiction, on the presidential reference provided for under Article 63-A of the constitution.
The Supreme Court of Pakistan has made a decision on a 3-2 vote that the vote of the defecting members of the Congressional and provincial assembly against the party line will not be counted to the final tally.
The ruling of the supreme court could have legal implications for the government of the Pakistan Muslim League- Nawaz under Chief Minister Hamza Shahbaz.
Justice Mazhar Alam and Justice Jamal Mandokeel have given a joint dissenting note. Chief Justice of Pakistan Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Munib Akhtar gave the majority verdict.
The supreme court received four questions posed in the presidential reference.
In answer to the first question, the court stated that the article 63-A could not be read in isolation from other sources of the constitution as it also contains principles of political parties, which provide a base for its political statement.
“Article 63A should therefore be given that interpretation and application as accords with, and is aligned as closely as possible to, the ideal situation. The pith and substance of Article 63A is to enforce the fundamental right of political parties under Article 17,” the court said.
Defection could destabilize and derail the parliamentary democracy in the country, it said.
In response to the follow-up second question in the reference, the court determined that the majority of voting members opposed to the party line voted against it., “cannot be counted and must be disregarded and this is so regardless of whether the Party Head, subsequent to such vote, proceeds to take, or refrains from taking, action that would result in a declaration of defection.”
However, responding to the third question, the top court stopped short of ruling in favor of a lifetime disqualification for defecting lawmakers.
The Supreme Court deemed it vital for Parliament to formulate legislation for the disqualification of defecting MPs.
The court also said that “it must be said that it is high time that such a law is placed on the statute book. If such legislation is enacted it should not amount to a mere slap on the wrist but must be a robust and proportionate response to the evil that it is designed to thwart and eradicate.”
The fourth question the president submitted was responded to by the judge with vague words or too general and too vague asin to the answer it was seeking.
The minority judgment by Judges Mandokhail and Miankhel affirmed that Article 63 (A) is a self-contained code, which provides a comprehensive procedure for violations of regulations of legislators and the consequences thereof.
“Any further interpretation of Article 63(A) of the Constitution, in our view, would amount to re-writing or reading into the Constitution and will also affect the other provisions of the Constitution, which has not even been asked by the president through this reference”.
“Therefore, it is not our mandate. We see no force in the questions asked through this presidential reference, which are answered in the negative. However, if the Parliament deems fit or appropriate may impose further bar or restrictions upon the defectors,” said the minority judgment.