SC says dissident members vote won't be counted
Rejects AGP request to send back presidential reference while declaring it not maintainable
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In a major decision, the Supreme Court Tuesday ruled that dissident members of the parliament (MPs) cannot cast votes against their parliamentary party's directives.
The SC in its decision said that the dissident members could not be disqualified for life.
The court, giving its verdict on the presidential reference seeking the interpretation of Article 63(A) of the constitution, said that the article concerned cannot be interpreted alone.
It was a split decision with a 3-2 as two judges wrote dissent notes from the opinion given by the larger bench. Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail wrote dissent notes.
The 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, completed proceedings of the case today.
The court also rejected the Attorney General of Pakistan Ashtar Ausaf’s request to send back the reference while declaring it not maintainable.
CJP Bandial remarked that Articles 17 and 63-A both defend the rights of a political party. Don’t talk about sending the reference back on the basis of a technical point at this stage, the CJP told the attorney general asking him to proceed while saying that the court had been hearing this reference for the last one and a half months.
When Ausaf raised an objection to the maintainability of the presidential reference, CJP Bandial asked whether the question regarding Article 186 raised in the reference did not pertain to the formation of the government.
The AGP said that the President of Pakistan had never sent a reference in the past.
On this, Justice Ahsan remarked that the President need not seek legal advice from the attorney general in this regard. The President could send the reference, he added.
The AGP further told the court that the former prime minister did not relay any instructions in this regard after facing a defeat in the Senate.
Justice Ahsan said that it was the prerogative of a party’s head to send instructions in this regard or condone it.
Earlier, at the outset of the hearing, PML-N Makhdoom Ali Khan put forward his written submissions. He requested the court to allow him to submit more written submissions after he got approval from his client.
Attorney General of Pakistan Ashtar Ausaf complained about a campaign against him on the social media.
During yesterday’s hearing of the reference in the Supreme Court, both the AGP and PML-N lawyer did not show up and pleaded with the court to adjourn the hearing. But CJP Bandial expressed his displeasure reprimanding them both saying they wanted to delay the case while the court wanted to wrap it up.
Mr Ausaf told the court today that his absence triggered vitriolic remarks against him on social media.
On this, Chief Justice of Pakistan Bandial told him to stop watching social media.
While giving his arguments on the reference, the AGP said that he would present his arguments against the maintainability of the reference.
On this, Justice Akhtar remarked that former AGP Khalid Jawed Khan had given his arguments in favour of the reference. “How could you say that is not maintainable,” he asked.
The judge further inquired him if it was the government’s position. The AGP said he was talking about this in his personal capacity being an AGP.
He further contended “If the constitution gives seven years’ punishment to the wrongdoer, you cannot award him life term.”
Justice Akhtar inquired was it not possible to make a law to punish a dissident?
On this, AGP Ausaf said that of course the law could be made but the parliament did not make any law in this regard.
Justice Akhtar again prodded the AGP asking on which basis he was saying that Article 63-A was not applicable here.
The AGP replied that Articles 62 and 63 could not be invoked unless the Constitution was amended.
So you are still saying that law can be made in this regard, Justice Akhtar said.
The AGP contended that he was saying that the court could not amend the constitution. Only parliament can amend Articles 62 and 63-A, he elaborated.
Ausaf argued that the constitution awards penalty in which no one could add anything without bringing an amendment to it.
Justice Mandokhel chipped in and asked was it possible to enhance the constitutional penalty with the aid of the law.
No member of the Assembly can be prevented from exercising the right to vote, the top court observed, adding that political parties are essential for democracy and the political parties have rights under Article 17.
Dissidents can destabilize political parties and derail parliamentary democracy and the purpose of Article 63A is to prevent deviation. The head of a political party has the power to take action against members, the court said, adding that the essence of Article 63A is that no member of a political party has to deviate.
The purpose of Article 63A is to protect the fundamental rights of the parties and the parliament should legislate on dissent members, the apex court said. Deviant members' votes will not be counted and deviant members will not be disqualified for life, it said.
Justice Mazhar Alam and Justice Jamal Khan Mandokhel returned the reference without comment.