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Wednesday, February 1, 2023

Collective opinion important for stability of democracy: Justice Akhtar

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Chief Justice of Pakistan Justice Umar Ata Bandial, in the hearing of the presidential reference in the Supreme Court, observed that it would be “contemptuous” not to count the vote that has been cast during the no-trust proceedings. He further added that the real question was regarding the time period of the disqualification of the dissident MNA’s. The Chief Justice further advised that it is not up to the court to fill in the blank spaces, and such matters should be deliberated and resolved in the parliament than through a reference.

Earlier on Monday, the Supreme Court took up the presidential reference and declared that a larger bench would hear the case. The bench, which previously consisted of only two members, now consists of CJP Umar Ata Bandial, Justice Ijaz-ul-Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar, and Justice Jamal Khan Mandokhel.

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During the proceedings, the Attorney General of Pakistan said that the members of the party were bound by party discipline to vote in line with the party directives, to which he garnered support from a bench member, Justice Akhtar, who observed that “The party’s collective opinion is above an individual opinion. The collective opinion is important for the stability of democracy.” He further added that one interpretation of article 63A suggests that votes of the dissident’s members should not be counted.

Another bench member, Justice Mandokhail, recounted that a vote of no-confidence was brought against the Balochistan Assembly by their own party members. He further added what would happen if the lawmaker returned his seat.

Justice Alam observed that the constitution was very clear on that and said that the cancellation of the party member was equal to disqualification from the assembly. 

The attorney general seemed adamant to seek clarification regarding article 63-A(4). The AGP also referred to a case from the history books when the Supreme Court asked the dissenting lawmakers to resign from their seats if they were “troubled by the conscience.”

Justice Mandokhail pondered why the AGP was seeking the court’s opinion if they already had all the answers.

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To clarify, the reference in question was submitted by the Attorney General of Pakistan (AGP) Khalid Jawed Khan, on March 21, who, on the directives of the government, submitted the petition to seek the Supreme Court’s interpretation of the article 63A and on the right of individuals to vote against the party line in the no-trust motion.

The reference presented two interpretations of the article and requested the court for its advice on which should be followed. The reference also asked the Supreme Court to present its own interpretation and recommendations to prevent defection, horse-trading, and floor crossing.

According to the first interpretation, “khiyanat (dishonesty) by way of defections warrants no pre-emptive action save de-seating the member as per the prescribed procedure with no further restriction or curbs from seeking election afresh.”

Whereas the second interpretation “visualises this provision as prophylactic, enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralising the effects of vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct.” The reference also seeks answers to whether the defectors would be disqualified for life.

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In response to the Presidential reference, the Supreme Court Bar submitted a written draft that observed that the right to vote is an individual’s democratic right and does not necessarily have to be in line with the party’s recommendations. It further added that the Article could not be interpreted in a way so as to allow preemptive action to be taken against the members suspected of defecting.

Talking to the media, federal Information Minister Fawad Chaudhry said that SCBA was “becoming a subsidiary of a single political party”.