Presidential reference filed after no-trust motion, SC told

ISLAMABAD - The Supreme Court of Pakistan was Wednesday told that President Dr Arif Alvi filed the Reference when the opposition parties submitted no-confidence motion in the National Assembly against Prime Minister Imran Khan.

Makhdoom Ali Khan, representing the Opposition Leader in National Assembly Shahbaz Sharif, said that the President of Pakistan had sent the Reference to the apex court seeking interpretation of Article 63A of Constitution when the no-confidence motion was submitted in the Parliament. He said that the President is forwarding the stance of the prime minister.

He contended that though the president is bound by the advice of the prime minister, but he had two options; first he could have returned the Reference within 14 days and second, he could have asked the PM to take the matter to cabinet. But the President did not exercise these options and acted far agility.

Makhdoom stated this before a five-member bench, headed by Chief Justice Umar Ata Bandial who heard the Presidential Reference, filed under Article 186 of the Constitution and the President Supreme Court Bar Association (SCBA) petition under Article 184(3).

The counsel argued that the timing of the Reference is not appropriate. He said that the opposition filed the requisition for convening the Session on March 8, and the same day resolution for no-confidence motion was also submitted. He said in view of the Article 95 the Speaker was bound to summon the session within 14 days, which was March 22. He added that the Session was called on March 21 and after ‘fateha’ the Session prorogued, adding the first time the NA Session for no-confidence was held on March 25.

He said that the courts remain uninfluenced of the events taking outside, as it is part of judges’ training. He said that questions asked by the government are not in vacuum as the impression is created that the court is leaning to one or the other side.

Justice Ijaz ul Ahsan said that the courts are not concerned of the timing. The article and the laws are interpreted not for immediate situation, but for all times to come.

Justice Bandial asked from the counsel that you meant to say that the matter before the Court is political and the timing is as such that the progress of the hearing can be used one way or the other. The court advice is sought when the society is not in ‘thick of it’.

The Chief Justice said that there was wisdom that parliamentarians stop short off to disqualify a member on defection and agreed only to de-seat him. He said some of the matters need to be left to the political process.

Justice Jamal Khan Mandokhail questioned that whether the President of Pakistan could seek advice from the Supreme Court under its advisory jurisdiction on political matter, related to the Parliament. He further asked whether the President sent the Reference on the advice of the National Assembly Speaker.

Makhdoom Ali Khan argued whether the President could seek advice to substitute the text of Article 63A of Constitution, which is very much clear. He said one of the questions of the Reference is that there should be long time disqualification of the member for casting vote contrary to the direction of the party. It is further sought that the vote cast against the party discipline be disregarded.

Makhdoom Ali Khan argued that those do not learn from mistake never progress. He said a year ago the government had sent a Reference on Senate Election, but nothing was done on political question to curb the menace of horse-trading. He said the premier was aware of the horse-trading but nothing has been done since the last year.

The counsel also argued that Article 63A does not deal with the morality or nobility, adding the Constitution makers choose not to go beyond to de-seat a member on defection. He said the present situation could have been avoided if the steps were taken to curb the menace of horse trading.

Justice Bandial said that it is not the first time the horse trading has taken place, it has happened earlier as well. He said the defection has been accepted by parties and the act committed by the members to defect has been condoned. It might affect the smooth functioning of the parliamentary democracy. He said that they cannot add to the intent of the lawmakers. He said that when the system is not strong enough to act itself then why should the court enforce this upon it.

Justice Muneeb said that on the questions in the Reference of Senate election the issue was that the MNAs/MPAs were selling their votes, adding in that they were not acting as the member of the party, but were voters in the National Assembly or Provincial Assemblies. He said while Article 63A deals with that the member of a party should not defect. He further said that Article 63A is an attempt to deter a person pre-voting, he should can’t votes against the discipline of its own party.

Later, the bench deferred the hearing till Monday for further proceedings.

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