ISLAMABAD, APR 20: Supreme Court Justice Ijazul Ahsan questioned on Wednesday whether disloyalty to a political party by a parliamentarian was dishonesty and could lead to his disqualification.
He raised the questions during the hearing of a presidential reference seeking the apex court’s interpretation of Article 63-A of the Constitution, which is related to disqualification of lawmakers over defection.
A five-member bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, heard the reference.
“Is disloyalty not dishonesty?” Justice Ahsan asked PPP counsel Farook H Naek who presented his arguments during the hearing today. He further asked whether a lawmaker could be disqualified over “dishonesty”.
Naek replied that “disloyalty” was a strong word, adding that it was not mentioned in Article 63-A.
At the start of the hearing today, Naek recalled that Article 58-2(b) — under which elected governments had been sent packing in the past — was abrogated in 1997 through the 13th Amendment but was brought back by military dictator Pervez Musharraf in 2002.
The article was again removed through the 18th Amendment in 2018, he said.
Article 63-A was made a part of the Constitution via the 14th Amendment, he said, adding that it gave broad powers to party heads.
The Election Commission of Pakistan (ECP) did have not have the authority to reject the party head’s decision prior to a presidential order amending Article 63-A in 2002 that reduced the powers of party heads, the PPP counsel said.
The 18th Amendment further reduced the powers of party heads and transferred them to the parliamentary leaders of the parties, he said, adding that after Article 63-A was amended, the authority to make the final decision was given to the SC.
“According to the 18th Amendment, the authority to make a decision on a reference related to Article 63-A was given to the ECP.” The amendment also bound the ECP to announce a decision within a month, he informed the court.
He contended that the presidential reference seeking the court’s opinion was only related to sub-clause 4 of Article 63-A — which states that a parliamentarian would no longer be a member of the house and his seat would become vacant once the ECP confirms the party head’s declaration stating his defection.
Justice Ahsan pointed out that Article 62(1)(f) did not specify the length of disqualification but its interpretation was provided by the SC.
Naek responded that lawmakers had not determined the length of disqualification for defecting lawmakers under Article 63-A.
