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Vote of defector can't be counted according to #SupremeCourt.
So Hamza Shehbaz isn't CM of Punjab. Soon Punjab assembly will elect Pervez Elahi as new CM of Punjab.
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ISLAMABAD: The Supreme Court of Pakistan has said that the vote of dissenting lawmakers will not be counted in parliament as the top court expressed its opinion on presidential reference seeking interpretation of Article 63-A.
A five-member bench, headed by Chief Justice Umar Ata Bandial, comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, announced a decision on Tuesday.
The apex court announced a 3-2 split decision, with the majority of the judges — CJP Bandial, Justice Ahsan and Justice Akhtar — ruled against the rebel lawmakers.
While Justice Mazhar Alam Miankhel and Justice Jamal Khan Mandokhail dissented from the majority opinion.
In view of the Supreme Court opinion, the fate of the Punjab government hangs in the balance as it was formed with the help of dissenting PTI lawmakers.
In March, President Arif Alvi sent the reference on the advice of then prime minister Imran Khan seeking interpretation of Article 63-A regarding its application of defecting parliamentarians.
Earlier today, new attorney general Ashtar Ausaf completed his arguments in the case.
As the hearing started, AG Ausaf argued that the president had never approached the court on matters of similar nature. “The reference should also be looked at in light of past,” he said, adding that the office of the Attorney General of Pakistan or legal experts were not consulted before submission of the reference.
Justice Ijazul Ahsan said the president was not bound to take advice from experts before proceeding with references. He added that as per Article 186, the president could send the reference. “Are you distancing yourself from the reference sent by the president,” Justice Ahsan asked.
“I have received no instructions from the government [regarding the reference],” the top government lawyer responded. He added that the parties that were in opposition at the time of the filing of the reference have come to power now. The stance of these parties on the reference has not changed, he added.
“Are you saying the reference is not maintainable…and that it should be sent back without our response,” Justice Ahsan further asked. The former attorney general, Khalid Javed, had termed this reference maintainable, the SC judge said. “As a new attorney general, you could argue your own stance,” Justice Munib Akhtar added.
The reference was filed on the advice of ex-PM Imran Khan, AGP Ausaf said. “Is this the view of the government,” Justice Jamal Khan Mandokhel asked. “This is my view as the attorney general. The former ruling PTI has its own lawyers to present their arguments,” the AGP added.
The president should have consulted lawyers before filing the reference. “The president could have sent this reference to court had the legal experts offered a different opinion,” he added.
Justice Bandial said the court has conducted a lot of hearings on the case now and added that the AGP should not focus on technical details as things had advanced beyond the issue of maintainability. “This is not a technical matter but a constitutional one but I still agree with the court’s observations,” AGP Ausaf added.
The CJP added that Article 17 talked about the rights of a political party while Article 63-A gave rights to political parties and protected these rights. “In case of violation of Article 63-A, there are two parties – one is the political party itself and another is dissident members,” he added.
The attorney general said Article 63-A outlined the process of proceedings against lawmakers over violation of party policies. “There are multiple pleas on Article 63-A pending in this court and the decision on the reference would affect their proceedings,” he added.
He said a lawmaker is not de-seated automatically as a result of the violation of the said article. “The party member is asked to explain themself through a show-cause notice and if the explanation is not satisfactory then a reference could be sent [to the ECP through speaker],” the top lawyer added.
Justice Jamal Mandokhel asked whether the president had ever raised this issue in his annual speech at parliament. “Did any political party take steps for the interpretation of Article 63-A,” he further asked.
The AGP said the prime minister did not issue any directions to his party members after the defeat of his candidate in the Senate elections. He added Imran had issued a statement before taking a vote of confidence from his party members following the Senate defeat.
Imran had told his members to use their conscience to vote for him, Ausaf added. “Imran had said he would go if his party members refused to vote for him,” the AGP added.
Justice Munib Akhtar said there was a difference between a vote of confidence and a vote of no-confidence. “It is up to the party head if they wanted to issue directives,” Justice Ahsan said and asked if the prime minister could not make changes to his directives. “The prime minister cannot deviate from his directives,” the AGP said.
Article 62(1)(f) for defectors?
“Is defection not a sign of malice,” the judge asked. “Is defection not akin to the abuse of trust,” he went to ask. “Can Article 62(1)(f) be applied to defectors after de-seating under Article 63-A,” the judge questioned while referring to the article of the constitution that pertained to ‘truthfulness and righteousness.
The AGP should respond to these questions directly, he added.
Justice Ahsan said there was a grave punishment for dishonesty. The AGP agreed.
He said lawmakers are elected to parliament for five years by the masses and the prime minister becomes the chief executive by the votes of these lawmakers. The lawmakers are answerable to the people, he said, adding that if a prime minister fails to fulfill promises he made to the public then what should happen, the AGP asked.
Read more Defection is akin to betrayal, remarks CJ
In such a case, the lawmakers could tender their resignations, the judge added. However, the AGP retorted that the lawmakers could remove the premier for not fulfilling their promises to the people.
AGP’s written response
The AGP in his written submission stated that the considered scheme of the Constitution, having evolved from the 1962 and 1985 Acts, found expression in the 14th Amendment of 1997, before finally being crystallized in Article 63-A vide 18th Amendment, which restored parliamentary rule by majority vote and not by dictation.
"In my considered opinion, Article 63-A is couched in clear and unambiguous terms; it provides a complete code to ensure a failsafe mechanism; it is closer to an Islamic dispensation; it repeals earlier notions relating to the discarding of votes; and it addresses the consensus raised in the declaration of law in the judgments rendered before its enactment. No additional penalties are called for, nor is there any element of khiyanat (dishonesty) when members of a single parliamentary party choose to disagree with a direction made in writing (one that has been conveyed to him or her). Each case would have to be examined on its own merits, according to the peculiar facts and circumstances of each case, as and when it reaches this court in its appellate jurisdiction.
"The purpose of Article 63-A, as informed by its previous iterations, the debates within the legislature, and the content of the provision itself, is unmistakable: that a member of parliament may exercise his constitutional right to express himself, to associate with a higher ideal, and to represent the aspirations of his constituents, by voting against the directions of the party head; that the party head retains a considered discretion in terms of adjudging whether the member voted for mala fide reasons or, in the alternative, answered the call of his conscience; that the member may be de-seated, and then is free to exercise his right to re-contest elections and, as held by this apex court in Khawaja Tariq Rahim’s case, make politics clean, and give rise to the emergence of principled leadership."
https://tribune.com.pk/story/2356960/dissenting-lawmakers-vote-will-not-be-counted-supreme-court
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