Pakistan

Govt seeks SC advisory on defection law

Minister says govt to file reference with top court for its opinion on Article 63(A)

Hasnaat Malik March 18, 2022

Information Minister Fawad Chaudhry pictured during an exclusive interview with Gulf News

ISLAMABAD:

The PTI-led government is again testing the top court by sending it another presidential reference — under Article 184 (3) — seeking its opinion about applicability of the Constitution’s Article 63(A), which is related to the disqualification of an assembly member on grounds of defection.

"The Supreme Court will be asked for its opinion on the legal status of the vote when members of a party are explicitly involved in horse-trading and change allegiances in exchange for money," Federal Information Minister Fawad Chaudhry said in a series of tweets on Friday.

حکومت نے فیصلہ کیا ہے کہ آرٹیکل 63-A کی تشریح کیلئے سپریم کورٹ میں آرٹیکل 186 کے تحت ریفرینس فائل کیا جائیگا، سپریم کورٹ سے رائے مانگی جائیگی کہ جب ایک پارٹی کے ممبران واضع طور پر ہارس ٹریڈنگ میں ملوث ہوں اور پیسوں کے بدلے وفاداریاں تبدیل کریں تو ان کے ووٹ کی قانونی حیئثت کیا ہے
— Ch Fawad Hussain (@fawadchaudhry) March 18, 2022

He added that the Supreme Court would also be asked for advice on whether those who changed their party loyalties for financial reasons would be disqualified for life or allowed to contest elections again.

He further wrote that the top court would be requested to hear the reference on a daily basis and reach a verdict.

However, a senior official in the law ministry has expressed his ignorance about the government’s upcoming decision of filing a reference.

He added that the ministry was taken into confidence about this move.

It has been learnt that the government is seeking guidance from Attorney General for Pakistan (AGP) Khalid Jawed Khan on critical issues.

کیا ایسے ممبران جو اپنی وفاداریاں معاشی مفادات کے بوجوہ تبدیل کریں ان کی نااہلیت زندگی بھر ہو گی یا انھیں دوبارہ انتخاب لڑنے کی اجازت ہو گی؟ سپریم کورٹ سے درخواست کی جائیگی کے اس ریفرینس کو روزانہ کی بنیاد پر سن کر فیصلہ سنایا جائے۔
— Ch Fawad Hussain (@fawadchaudhry) March 18, 2022

Senior lawyers believe that the Supreme Court should reject the reference by declaring it as non-maintainable.

They say that the fate of the presidential reference will be dependent on the composition of the bench and fixation of the date.

Former Sindh High Court Bar Association (SHCBA) president Salahuddin Ahmed said the president had the right to send a reference to the Supreme Court to ask its opinion on any question of law.

However, whether the top court chooses to give its opinion or not is at its discretion.

"It is unfortunate, however, that a reference is being sent to the Supreme Court over such a politically-charged matter, especially since the wording of the law [Article 63 (A)] is so crystal clear and admits of no doubt,” he added.

“All parliamentarians have a right to cast their vote and have them counted. Any disqualification proceedings can only start subsequent to that. It may be recalled that even on the previous occasion when the current president sent a reference to the SC [regarding the secrecy of balloting in the Senate elections] was in a politically-charged matter where the letter of the law was crystal clear."

Also read: AGP may have some legal tricks up his sleeve

The ex-SHCBA president observed that ultimately, this was a political challenge being faced by the government, and it should tackle it politically rather than always expect the judiciary or any other institution to bail it out.

Former attorney general Ashtar Ausaf said it was within the power of the president to invoke Article 186 of the Constitution to seek advice from the Supreme Court on a question of public importance.

“However, in order to qualify the threshold of maintainability, the matter should be unique, and there must not be a judicial verdict,” he added.

Ausaf noted that a very elaborate decision had already been rendered by the SC while hearing an appeal filed by PM Imran on the question relating to the scope, interpretation, and application of Article 64 (A).

“He had given a declaration against one of his party MNAs, Ayesha Gulalai. The case was decided against Imran Khan in 2018."

The former AGP said another aspect of the matter was that the prime minister, before seeking a vote of confidence, on record had said his party members were free to vote against him.

“Can he retract from a public statement now?” Will he be Sadiq [honest] if he now takes a different stand?” he questioned.

It has also been learnt that the government would file the presidential reference on Monday. The government will mainly raise two questions in the reference -- whether or not Article 63 (A) had preventive effects and whether the de-seating under the law would be simple or result in lifetime disqualification.

The AGP will meet PM Imran on Saturday (today).