ISLAMABAD - Judge of Supreme Court of Pakistan Justice Ijazul Ahsan Monday observed that switching of loyalties by a few lawmakers to change a government at any time is a joke.

A five-member larger bench of the apex court comprising Chief Justice of Pakistan Justice Umar Ata Bandial, Justice Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail conducted hearing of the Presidential Reference, filed under Article 186 of the Constitution and the President Supreme Court Bar Association (SCBA) Ahsan Bhoon filed the petition under Article 184(3).

During the hearing, Justice Ahsan observed that Article 63-A was related to de-seating and questioned that how it could be linked with lifetime disqualification. Different forums were available to take action against those who changed loyalties, he noted, observing that linking Article 63-A to lifetime disqualification was “merely a hypothesis”.

In the beginning of the hearing, AGP Khan referred the Supreme Court judgment delivered in case of Speaker National Assembly vs Habib Akram in which the SC had asked all candidates to submit an affidavit along with nomination papers. The court had declared that nomination papers without the affidavit would be incomplete, he said.

He added, “In the law, there was no requirement of an affidavit. It was submitted on orders of the court.” The court had said in the verdict that the move was aimed at ensuring transparency in the election process, the AGP informed the bench.

The attorney general said that the court needed to interpret whether a member who defects can contest the by-election or he would have to wait until general election or would be disqualified permanently.

Justice Mandokhail asked from the attorney general that the defection yet has not taken, but you are asking the court to determine the period of a member who defects. He further asked the attorney general whether he has filed the Reference for the future. The AGP replied no and added that this is also for the present situation.

Justice Mandokhail inquired is it the will of all the political parties in the Parliament or it is just the will of the ruling party to interpret the Article 63A of the Constitution. He said that if it was the will of all parties then let the Parliament decide the consequences of defection. The judge said that according the Article 63A of the Constitution if the party leader issues declaration upon the defection and not following the party line and send the matter to Election Commission of Pakistan then let the ECP and the Supreme Court decide it.

He asked the attorney general that when the law is clear then what does the government wants? The AGP said, “I am not seeking clarification, but have asked questions from the apex court.”

Justice Mandokhail said that it might happen that the dissenting members’ conscience has awakened.

Justice Jamal Khan Mandokhail said, “Whether Prime Minister Imran Khan cannot be restrained from issuing irresponsible statements.” He said that when the PM does not have confidence in the highest forum [SC] then how the people will have confidence in him.

Justice Mazhar Alam Khan Miankhel said that wrong impression is being taken of the queries asked by the bench members during the Reference proceeding. He said that two days ago the Prime Minister while addressing a rally in Kamalia had passed unpleasant remarks against the judiciary. The PM said in his address in Kamalia that the PML-N is trying to woo the judges against the government.

Attorney General for Pakistan Khalid Jawed Khan said that this news was published in a newspaper. At this, Justice Mazhar Alam said that the news item was published in many newspapers and aired on different TV channels. The Chief Justice said that the leaders of the political parties should not speak against the courts and such remarks are also on social media. The CJP said that they are not influenced by such things. He further said that the political leaders should avoid dragging judges in politics. Justice Mandokhail said that the judges ask questions to understand the issue, presented before the court.

The AG argued that the Parliament was conscious of the fact that such act [defection] would affect the system. Justice Mandokhail said it may be drastic for the incumbent government, but it would benefit the other party. He said that the process in Article 95 is given to topple the government of the ruling party and chance to other party to form the government. At that Justice Ijaz inquired from the attorney general that how much expenses are incurred on an election. The AGP replied that in billions. The chief justice said that not in billions of rupees because this amount is required in general elections.

Justice Bandial observed that even if a member was de-seated and the no-confidence motion against the prime minister was unsuccessful, the ruling party still loses the majority. He asked from the AGP that if the members defect in no-confidence motion, they are de-seated and as per your argument, they do not remain honest. He said that what if the dissenters resign then in the confidence motion, the party will also lose the majority.

Justice Mandokhail said when the defection of a member is proved according to the clauses of Article 63A then he will go to the electorates. He remarked that why not leave it to voters to decide about the fate of that legislator. He further asked the AGP why does he want that he be convicted and that he may not be allowed to contest election for five-years.

Justice Bandial observed that if one is driving on motorway, where the maximum speed allowed is 120, but he drives at the speed of 180 per hour, then where is the mens rea.

Justice Muneeb Akhtar observed that the case law developed over a period of time to disqualify the member under Article 62(1)(f) for mis-declaration or false declaration. It all hovers around at the time of submitting nomination paper, which is pre-election time. He said, “You want to extend this into the post-election scenario, which is totally different in dimension.” He questioned how a lawmaker could be disqualified for life without misconduct proceedings being initiated against him.

Later, the bench adjourned the hearing till today.