The Pakistan Tehreek-e-Insaf government on Monday submitted a presidential reference in the Supreme Court, seeking its opinion on Article 63-A of the Constitution which deals with the disqualification of parliamentarians over defection.
The reference, filed by Attorney General of Pakistan Khalid Jawed Khan, stated that if the constitutional disapproval and prohibition against defection is effectively enforced with deterrence for future as well, many such members shall stand disqualified for life under Article 62(1)(f) and will never be able to pollute democratic streams.
“Such a robust and purpose oriented interpretation of Articles 62 and 63A by this Hon’ble Court would advance a highly desirable constitutional goal by shutting the doors of Parliament for habitual turncoats who have converted the honourable, elevated and trustworthy status of a Member of Parliament or Provincial Assembly into a tradable commodity eternally soliciting highest bidders,” it said.
The reference further prayed that only those who learn lessons from their mistakes could progress while the complacent were doomed.
“It was barely a year ago in the wake of elections for the Senate that compelling evidence in the form of audio and video recordings showing horse trading emerged leaving the identities of perpetrators in no doubt yet nothing meaningful has been done in that respect till date,” it stated.
Narratives’ Media research shows that the Supreme Court of Pakistan in the past had held that the higher judiciary while interpreting a statute, remains bound to follow the intention of the legislature.
“The Courts, while interpreting a statute, are bound to follow the intention of the legislature and are prohibited to interpret the law in the manner contrary to the intention of the legislature,” says PLD 2007, SC 369.
The anti-defection legislation aims to prevent horse-trading and ensure stability in the system. In this perspective, if the defectors are allowed to vote against their own party and only after that punitive action can be initiated, then it means the primary objective of the Constitution has not been met. Any interpretation of this legislation avoiding this fact means undermining the Constitution and its spirit.
As per 63-A: (a) Party Head may after providing the defecting member with an opportunity of being heard, through a show-cause notice, declare in writing that member has defected and (b) Forward the copy of the declaration to the Presiding Officer (Speaker NA in this case), the Chief Election Commissioner (CEC) and the defecting member. (c) Speaker NA shall within two days refer the declaration to the CEC (d) CEC shall lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within 30 days of its receipt by the CEC. (e) Upon confirmation of the declaration by the Election Commission, the defecting member shall cease to be a member of the House and his seat shall become vacant.
The PTI has already issued a show-cause notice to its 13 defectors, asking them to appear before the parliamentary party leader Prime Minister Imran Khan for explanation till March 26. However, some legal minds say that the ruling party should have drafted the notice in such a way that defectors should be forced to reply within 24 hours in black-and-white, preferably in “yes or no” about their intention to vote. The show-cause notice should also mention facts as reported in the media about them changing loyalties.
The government must also file petitions from 10-20 voters of the relevant constituencies in the Supreme Court praying that the vote entrusted to the defectors was not meant for horse-trading/ floor-crossing. These petitions from the constituencies of the defectors will make this issue a matter of public importance.
