A five-member bench of the Supreme Court of Pakistan has announced its decision, in advisory jurisdiction, on the presidential reference for the interpretation of Article 63-A of the Constitution.
The top court has ruled in a 3-2 majority decision that the vote cast by the defecting members of the national and provincial assembly against the party line would not be counted to the final tally.
The ruling will likely have ramifications for the Punjab government of PML-N under Chief Minister Hamza Shahbaz.
Justice Mazhar Alam and Justice Jamal Mandokhel have given a joint dissenting note. Chief Justice of Pakistan Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar gave the majority verdict.
The apex court had to deal with four questions posed in the presidential reference.
In response to the first question, the court said that Article 63-A could not be read in isolation from other Articles of the constitution as it also talks about the rights of the political parties, which provide the base for the political statement.
"Article 63A should therefore be given that interpretation and application as accords with, and is aligned as closely as possible to, the ideal situation. The pith and substance of Article 63A is to enforce the fundamental right of political parties under Article 17," the court said.
Defection could destabilize and derail the parliamentary democracy in the country, it said.
In response to the second question in the reference, the court said that the vote of the MPs who vote against the party lines "cannot be counted and must be disregarded and this is so regardless of whether the Party Head, subsequent to such vote, proceeds to take, or refrains from taking, action that would result in a declaration of defection."
However, responding to the third question, the top court stopped short of ruling in favor of a lifetime disqualification for defecting lawmakers, SAMAA TV's Zulqarnain Iqbal reported.
The Supreme Court said that it was for the Parliament to enact legislation for the disqualification of defecting MPs.
The court also said that "it must be said that it is high time that such a law is placed on the statute book. If such legislation is enacted it should not amount to a mere slap on the wrist but must be a robust and proportionate response to the evil that it is designed to thwart and eradicate."
The court has not decided on the fourth question in the reference about preempting defection in the future, saying that it was "vague, and too broad and general."
The two dissenting judges said that if the vote of a lawmaker is not counted to the final tally it meant that they had not committed defection, said Iqbal.
The judges said that the constitution already provided for the de-seating of the defecting lawmakers and any further interpretation of Article 63A of the Constitution "in our view, would amount to re-writing or reading into the Constitution and will also affect the other provisions of the Constitution, which has not even been asked by the President through this Reference."
" Therefore, it is not our mandate. We see no force in the questions asked through this Presidential Reference, which are answered in the negative. However, if the Parliament deems fit or appropriate may impose further bar or restrictions upon the defectors," read the dissenting note.
Zulqarnain Iqbal said that the MPs deemed to have defected would be de-seated after the process at the ECP is completed though they have escaped disqualification.
The judges arrived at the Supreme Court building at around 6pm where lawyers and reporters were waiting at the top court for the decision.
Attorney general raises belated objections on reference
Earlier in the day, the five-member larger bench reserved the judgment after hearing final arguments from the attorney general of Pakistan and the counsel of Pakistan Tehreek-e-Insaf (PTI).
In his concluding arguments, Attorney General Ashtar Ausaf raised objections over the maintainability of the reference.
However, Chief Justice Umar Ata Bandial interjected and said the court has been hearing this case for one and a half month. The scope of the proceedings has gone beyond the question of maintainability, the CJP remarked.
Justice Ijazul Ahsan asked the attorney general if the court should return the reference without any verdict?
Ausaf said the reference was filed on the advise of the previous prime minister, adding the case before the court is technical and not constitutional.
Justice Jamal Mandokhail asked the attorney general if he was stating the government's opinion. The attorney general replied this was his personal opinion.
The chief justice remarked Article 63-A imposes certain restrictions on the lawmakers during voting in the National Assembly. However, the attorney general said this interpretation would render the Article 95 of the Constitution as ineffective.
Article 95 outlines the procedure of the vote of no-confidence against the prime minister.
Could a no-confidence motion be passed without horse trading, asked Justice Ahsan.
Justice Jamal Mandokhail asked how a party could vote out its own elected prime minister.
Article 63-A(1) of the Constitution outlines disqualification of the assembly members on grounds of defection from the party policy.
The Article states that a lawmaker can be disqualified if they "vote or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which they belong, in relation to the election of the prime minister or the chief minister, a vote of confidence or a vote on Money Bill or a Constitution (Amendment) Bill.
Before the ouster of the PTI government, it filed the reference in an effort to stem defections during the vote on the no-confidence motion when it appeared that over 14 PTI MNAs were going to vote in favor of the motion.
In the reference, filed under Article 186, the PTI government asked the apex court about the "legal status of the vote of party members when they are clearly involved in horse-trading and change their loyalties in exchange for money".
The constitution of Pakistan provides that whenever the government is in doubt about a legal question, the president of the country can send a reference to the Supreme Court for an interpretation or explanation.
Under Article 186 of the Constitution, the apex court considers the question in its ‘Advisory Jurisdiction’.
Article 186 reads as follows:
186 Advisory Jurisdiction.
(1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration.
(2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President.
The most recent example of a presidential reference is from 2020 when the PTI government wanted to end "secret balloting" in Senate elections.
The government filed the reference as Prime Minister Imran Khan launched into fiery speeches in support of an open vote.
The Supreme Court, however, ruled that elections to the upper house of the Parliament must be held through a secret vote as the Constitution was clear on this question.