The Supreme Court on Tuesday, in its decision on a presidential directive seeking an interpretation of Article 63-A of the Constitution relating to the status of contemptuous lawmakers, ruled that defiant lawmakers’ votes would not be counted.
The decision of the high court was a decision divided 3-2, with the majority of judges not allowing lawmakers to vote against the party line in the four cases described under Article 63-A.
These events consist of the election of the prime minister and prime minister; a vote of confidence or self-confidence; Constitutional amendment bill; and financial debt.
Chief Justice Umar Ata Bandial, Judge Ijazul Ahsan and Judge Munib Akhtar handed down a majority sentence while Justice Mazhar Alam Khan Miankhel and Judge Jamal Khan Mandokhail served as opposition judges.
In a referendum, President Arif Alvi asked four questions from the high court.
Key questions for reference
- Will “fraudulent” MNAs be allowed to vote?
- Will the vote of the apostate members be counted, given equal weight?
- Will these rebels be prevented for life?
- Steps that can be taken to prevent deviations, standardization and vote buying
The ruling said non-compliance “could undermine parliamentary democracy and disrupt political parties”. It also noted that the rights of political parties were enshrined in Article 17, while the purpose of Article 63-A was to prevent sedition.
The Supreme Court has asked parliament to set a deadline for opposition to the opposition. It also did not comment on any of the questions asked in the referendum on future steps that could be taken to prevent deviations, crossroads and procurement.
In a separate statement, the judges said that commenting on a presidential referendum was tantamount to “rewriting the Constitution”.
The attorney general provides the interview
A five-member bench headed by Chief Justice Umar Ata Bandial, and comprising Judge Ijazul Ahsan, Judge Mazhar Alam Khan Miankhel, Judge Munib Akhtar and Judge Jamal Khan Mandokhail, concluded the trial process early today.
The first trial took place on March 21 with a two-member bench, after which CJP Bandial formed a large bench to hear the case, which took news and public talks in the country after 12 members at the time. The ruling PTI, which occupied Islamabad’s Sindh House, has come out openly against its party on the issue of a no-confidence motion tabled by the opposition against then-prime minister Imran Khan.
During today’s hearing, PML-N lawyer Makhdoom Ali Khan submitted his detailed response to the court and asked for more time to present his case. He maintained that the situation had changed and he needed more time to seek instructions from his client.
Pakistan’s newly appointed Attorney General Ashtar Ausaf (AGP) also concluded his deliberations during today’s trial. In the last case, Justice Bandial expressed his disappointment at the absence of the AGP.
Taking the rostrum, Ausaf said questions about the public interest or the law could be raised in the presidential referendum.
“Is the question being asked [under] Article 186 does not relate to the establishment of the state? “The chief judge asked. Article 186 relates to the jurisdiction of the Supreme Court.
The AGP replied that the president had not sent such a directive in the past about the same incidents, and urged the court to also look into the reference to the past case.
Justice Ahsan has noted that the president should not seek legal advice from an attorney general before filing a lawsuit. According to Article 186, the president can send a directive when a legal question arises, he explained, asking that the AGP was separating itself from the presidential directive.
“I have not received any orders from the government,” Ausaf replied, adding that he would assist the court in his role as AGP.
At one point, Justice Ahsan asked if the AGP was trying to say that a presidential reference was not allowed. “Are you suggesting that the reference be returned without giving a reply?”
Justice Akhtar also recalled that the previous AGP had declared that the referendum was acceptable. However, like AGP, you can show your status, he said.
The AGP said the reference was made to the advice of former prime minister Imran Khan. He also clarified that he was expressing his views, saying that there were some former government lawyers to do the same for them.
Ausaf said President Arif Alvi should have sought the opinion of legal experts before submitting a reference. “If opinions differed, the president would have sent a referendum,” he said.
Here, CJP Bandial said many discussions had been devoted to hearing the presidential referendum. Articles 17 and 63 of the Constitution both deal with the rights of political parties while one protects these rights, he noted.
The CJP indicated that the referendum was filed in March and that the court had heard it for a month and a half. “Do not focus on technical issues because things are going on beyond the point of reference,” he told the AGP.
The AGP said this was a constitution, not a matter of art. He also said that the high court should remember the rights of workers and political parties.
He emphasized that the decision to take action against members of the opposition was based on Article 63-A, adding that an appeal against the ruling would be taken by the high court.
He further argued that the legislator did not automatically resign if he did not qualify under Article 63 (1). The lawmaker was issued a notice of cause-cause and was asked to provide an explanation, he said. “If the party head is not satisfied, he can send a motion against the opposition attorney,” Ausaf added.
At one point, Justice Mandokhail asked if the president had ever raised the issue in his annual address to parliament. He also wondered if any political party had ever taken steps to seek interpretation or amend Article 63-A.
The attorney general responded that after dealing with the Senate election, the former prime minister (Imran Khan) did not issue directives to lawmakers.
He further added that Imran issued a statement before seeking a vote of confidence in lawmakers in March 2021, in which he said lawmakers should make a decision based on their conscience.
Imran Khan has said that if he does not secure a vote of confidence, he will return home, the attorney general said.
Justice Ahsan has realized that issuing orders depends on the head of the group. “He (Imran) was also the prime minister during the no-confidence vote,” he said.
Ausaf responded that the former prime minister had relinquished his former position, prompting Justice Ahsan to question whether it had been heard that the prime minister had changed his terms.
“The Prime Minister makes the oath under the Constitution.
He further added that the legislature was elected by the people for a five-year term, after which the legislators voted to elect the prime minister. “Lawmakers will be accountable to the people,” he said.
The AGP also argued that lawmakers could vote to change the Prime Minister if the latter fails to deliver on the promises made by the people.
“No laws can be enacted to punish imperfect lawmakers,” Justice Akhtar asked. Ausaf responded that they could not be approved but that parliament had not yet taken this.
Justice Akhtar also questioned why the attorney general had ruled that Article 63-A did not apply to the case. Articles 62, 63 cannot be used until you have amended the Constitution, ”Ansaf replied.
“So far, you say the laws can be enforced,” Justice Akhtar said, in which Ausaf replied that the high court could not amend the Constitution.
“Only parliament can amend paragraphs 62, 63 and 63-A,” he said. Concluding his remarks, he said the Constitution imposed a penalty of treason that could not be increased without making constitutional amendments.
In terms of Article 63-A of the Constitution, parliament may be barred on the grounds of treason if “a vote or refusal to vote in the House against any directive issued by a parliamentary party, in relation to an election of Parliament; the prime minister or prime minister; the draft Constitution (amendment).
The article states that the head of the group must declare in writing that the MNA is affected but before issuing the declaration, the party head will “give such a member an opportunity to show why the declaration may not be made to him”.
After giving the member the opportunity to state their reasons, the party leader will forward the notice to the speaker, who will forward it to the Chief Electoral Commissioner (CEC). The CEC will have 30 days to verify the declaration. If approved by the CEC, a member “shall cease to be a member of the House and his or her seat shall be vacant”.
Prior to his dismissal, the PTI government filed a presidential referendum on the interpretation of Article 63-A, asking the high court about the “legal status of the party members’ vote when they were actively involved in the horse trade and changing their allegiance.
In a statement, President Dr Arif Alvi also asked the high court if a member with “constitutional action and insurgency” could claim the right to have his or her vote counted and given equal weight or if there was a constitutional barrier to excluding those “polluted” votes.
He also asked the court to clarify whether a member of parliament, who had been declared a heretic, could be allowed to live for the rest of his life. Alvi warned that unless horse trade was abolished, “true democracy would always be a dream come true.”
“As a result of the poor interpretation of Article 63-A involving long-term disqualification, such members begin to enrich themselves and return to remain available to the highest bidder in the next round of cancer progression.”
The referendum was held at a time when the opposition party was vying for the support of several PTI representatives before the vote in a vote of no confidence in former Prime Minister Imran Khan. In the end, the votes of the opposition members were not required for the removal of Imran, as the opposition party was able to mobilize support from government-affiliated political parties.
However, the role of the opposition legislators was crucial in the election of opposition party candidate Hamza Shehbaz as Punjab’s prime minister who received 197 votes, including 25 PTI rebels.