While hearing the presidential reference seeking interpretation of Article 63 of the Constitution on Friday, the Supreme Court said it could not “fill in the blanks” as its job was only to “interpret” the Constitution.
These remarks were made by a five-member bench headed by Chief Justice Umar Ata Bandial. Other bench members are Justice Ijazul Ahsan, Justice Mazhar Alam, Justice Muneeb Akhtar, and Justice Jamal Mandokhel.
Justice Ijazul Ahsan said the top court does not deviate from its task of interpretation which was sought by the president, Arif Alvi. He said it was also possible that the court may send the reference back.
During the hearing, CJ Bandial said the court could not fill the blanks and asked the government why it did not make a law in order to determine the length of disqualification of lawmakers for violating Article 63-A.
Justice Bandial asked Attorney General Khalid Jawed Khan that the federal government had the power to make the law so why was it not done. “Nothing related to disqualification over defection is mentioned in Election Act 2017,” he said while also referring to Article 63-P.
CJ Bandial said the apex court could not go beyond the Constitution. Regarding the AGP’s contention about the applicability of lifetime disqualification under Article 62 (1) (f) of the Constitution on defected lawmakers, the CJP said that the 18th Amendment clarified that declaration from a court of law was required to disqualify a lawmaker for life.
The judge then asked the AGP whether the Election Commission of Pakistan (ECP) was a court of law.
However, Justice Ijazul Ahsan responded that whenever the apex court upholds any lower court’s decision, then it comes under the purview of the court declaration.
During the hearing, CJ Bandial said the Constitution was not clear about the loyalties of lawmakers to their respective political parties. “Does a member declare that they will remain loyal to the party in the membership form,” Justice Ahsan asked. “If this is specifically mentioned in the form then non-compliance would be tantamount to dishonesty,” he added.
In a reference to PTI Chairman Imran Khan, he said has the PTI head given such a direction during the present circumstances? According to Justice Ahsan, a person contesting elections on a party platform gets votes on the basis of his party’s election symbol. “It is compulsory for a lawmaker to follow party directions as they are elected on the party’s ticket,” he stated. There would be action against those who violated the party policy, he added.
Justice Mandokhel asked whether party members were bound to follow the party head in case of violation of the Constitution? “Can any member express lack of trust in the prime minister,” he went on to ask.
Attorney General Khan said the lawmakers were not “rubber stamps” and they could resign from parliament if they disagreed with the party head.
CJ Bandial said the party heads would not need to invoke Article 63-A if there was democracy within the party. “The beauty of Article 63-A is that it should not be needed,” he added.
In a comment on the presidential reference, Justice Mandokhel said the president consulted political parties before approaching the top court with a reference. “It is not appropriate to consult political parties before asking the court. The Constitution could be amended with the help of other parliamentary parties, ”he added.
Justice Alam quipped that the government had approached the court even before any defections. AGP Khan said the purpose was to stop the act. The judge asked how could the court announce punishment before a crime. “The government brought forth the reference to seek clarity on the law,” the AGP responded.
Justice Bandial said the AGP needed to tell the court as to when a lawmaker would be disqualified for life. Article 62 (i) (f) pertained to qualification, the CJP said, adding that the particular article did not pertain to disqualification.
AGP Khan replied that he would provide a “direct relation” between articles 62 and 63. Justice Ahsan said no article of the Constitution could be read independently and further stated that articles 62 and 63 are read together.
AGP Khan said there should be a clear punishment if there is a crime. Justice Ahsan responded that the court’s job was to interpret the Constitution. AGP Khan added that on the Hasba bill, the government had come to the court against its draft.
Justice Mandokhel asked why was President Alvi seeking the opinion of the top court. “Does he have some material which made him approach the court,” he asked. AGP Khan said the top court was bound to give an opinion on a presidential reference.
Justice Ahsan said the SC had to decide on the consequences of defection under Article 63-A. Justice Mandokhel asked whether the court could use judicial powers while hearing a reference.
At this point, the AGP produced the debate on the 18th Amendment before the court. Justice Bandial asked if the court had to fill in the blanks.
The AGP added that Article (1) (f) had blank spaces and it was still interpreted by the court. He added that parliament did not insert lifetime disqualification for violation of Article 62 (1) (f).
“Would Article 63-A apply on defectors,” Justice Akhtar asked. Justice Akhtar added that Article 63-A does provide reasoning for de-seating.
The court adjourned the case till Monday., With the AGP stating that he would require two hours to complete his arguments on Monday.