Article 63-A: SC decides defecting lawmakers' votes will not be counted

The Supreme Court on Tuesday, in its decision on a presidential reference seeking interpretation of Article 63-A of the Constitution which is related to the status of defecting lawmakers, said the votes of defecting lawmakers will not be counted.

The verdict by the larger bench of the apex court was a 3-2 split decision, with a majority of the judges not allowing lawmakers to vote against party line in four instances outlined under Article 63-A.

These four instances are the election of prime minister and chief minister; a vote of confidence or no-confidence; a Constitution amendment bill; and a money bill.

Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar gave the majority verdict while Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail were the dissenting judges.

In the reference, President Arif Alvi had asked four main questions from the apex court.

The verdict, which was announced by the CJP, stated that defection could "derail parliamentary democracy and destabilise political parties". It also noted that the rights of political parties had been underlined in Article 17, while the objective of Article 63-A was to prevent defection.

The apex court called on parliament to determine the timeframe for the disqualification of a dissident lawmaker. It also did not give an opinion on one of the questions asked in the reference concerning the future measures that can be taken to prevent defection, floor crossing and buying.

In the dissenting note, the judges said giving an opinion on the presidential reference was akin "rewriting the Constitution".

Attorney general presents arguments A five-member bench headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, had completed proceedings of the case earlier yesterday.

The first hearing of the case took place on March 21 by a two-member bench, after which CJP Bandial constituted a larger bench to hear the matter, which took over news and public discourse in the country after at least a dozen members of the then ruling PTI, who were staying at Islamabad's Sindh House, came out in open defiance of their party on the issue of the noconfidence motion submitted by the joint opposition against then-premier Imran Khan.

During yesterday's hearing, PML-N lawyer Makhdoom Ali Khan submitted his detailed response to the court and asked for more time to

present his arguments. He maintained that the situation had changed and he needed more time to seek instructions from his client.

Newly appointed Attorney General for Pakistan Ashtar Ausaf (AGP) also completed his arguments during yesterday's hearing. At the last hearing, Justice Bandial had expressed his disappointment over the AGP's absence.

Taking the rostrum, Ausaf said that questions pertaining to public interest or the law could be raised in a presidential reference.

"Is the question asked [under] Article 186 not related to the formation of the government?" the chief justice asked. Article 186 is related to the advisory jurisdiction of the apex court.

The AGP replied that the president had never sent such a reference in the past over similar incidents, and urged the court to also view the reference within the context of the past.

Justice Ahsan remarked that the president did not need to seek legal advice from the attorney general before filing a reference. According to Article 186, the president can send a reference when a legal question arises, he pointed out, asking whether the AGP was disassociating himself from the presidential reference.

"I haven't received any instructions from the government," Ausaf replied, adding that he would aid the court in his capacity as AGP.

At one point, Justice Ahsan asked whether the AGP was trying to imply that the presidential reference was not admissible. "Are you suggesting that the reference be sent back without providing an answer?"

Justice Akhtar also recalled that the former AGP had declared the reference to be admissible. However, as the AGP, you can also present your stance, he said.

The AGP said that the reference was filed on the advice of former prime minister Imran Khan. He also clarified that he was presenting his stance, adding that the former government's lawyers were present to do the same for them.

Ausaf stated that President Arif Alvi should have sought the opinion of legal experts before filing the reference. "If the opinions differed, then the president could have sent the reference," he said.

Here, CJP Bandial said that several hearings had been dedicated to hearing the presidential reference. Articles 17 and 63 of the Constitution both talk about the rights of political parties while the latter protects these rights, he observed.

The CJP pointed out that the reference was filed in March and the court had been hearing it for a month-and-a-half. "Don't focus on technical matters because things have proceeded beyond the point of whether or not the reference is admissible," he told the AGP.

AGP said that this was a constitutional, not a technical matter. He also argued that the apex court had to keep in mind the rights of workers and political parties. He explained that the procedure for taking action against dissident members was underlined in Article 63-A, adding that the appeal against the sentence would be taken up by the apex court.

He also argued that a lawmaker was not automatically de-seated when disqualified under Article 63(1). The lawmaker is issued a show-cause notice and asked to provide an explanation, he said. "If the party head is not satisfied, he can send a reference against the dissident lawmaker," Ausaf added.

At one point, Justice Mandokhail asked whether the president had ever raised this issue during his annual speech in parliament. He also wondered whether any political party had ever taken steps to seek the interpretation of or amend Article 63-A.

The attorney general replied that after facing defeat in the Senate elections, the former prime minister (Imran Khan) did not issue any instructions to lawmakers.

He went on to say that Imran had issued a statement before seeking a vote of confidence from lawmakers in March 2021, in which he said that lawmakers should make a decision based on their conscience.

Imran Khan said that if he does not secure the trust vote, he would go back home, the attorney general said.