Chief Justice of Pakistan Umar Ata Bandial on Wednesday observed that Article 63-A of the Constitution could not be considered “redundant”.
“When a system is not strong, then the court should come forward to enforce the Constitution, the CJP noted while hearing presidential reference seeking the interpretation and scope of Article 63-A.
A five-judge larger bench, headed by the CJP, is hearing the matter.
The CJP noted that the party head could condone defection by not sending declaration to the Election Commission of Pakistan (ECP).
However, he added that the court had no option except the enforcement of the Constitution.
The top judge further remarked that some issues should have left for the political process, but he was still not convinced in this matter.
Justice Ijaz ul Ahsan, who is also on the bench, noted that defection was immoral and opportunistic as the entire system suffered because of it.
He added that if a lawmaker act in violation of Article 63-A, then he would fall within the purview of Article 62(1)(f).
During the hearing, Makhdoom Ali Khan, the counsel for the PML-N, questioned the timing regarding filing of presidential reference in this case.
He added that the purpose of the reference was to curb corrupt practices, which were already done in the Senate elections last year.
He asked as to as why the ruling party head had not taken action against the MNAs, who were allegedly involved in corrupt practices during the Senate elections and waited for a year.
The lawyer also said the court could not look into morality.
He also raised questions on the maintainability of the reference.
In his written submission, the lawyer stated that the reference was pre-mature, vague and speculative. “It seeks declarations in advance with regard to the consequences which may flow from an “exercise of vote in a particular way by the members of National Assembly (MNAs) of a particular party on an as yet undetermined future day,” it read.
“The reference does not seek an opinion on a question of law of public importance. It seeks a re-writing of the Constitution. It wants this hon’ble court to read the word ‘disqualification’ into Article 63-A of the Constitution. Further, on the premise that since no duration of alleged ‘disqualification’ is provided in Article 63-A, the words ‘lifetime’ be read in by this hon’ble court. Further still, it seeks that the vote(s) against the prime minister by any member of his party be disregarded.”
The counsel further argued that the reference also did not seek an interpretation of constitutional text. “It seeks to read the current political needs of the leader of a political party into the text of the Constitution under the thin guise of an unsullied and pure political process. At the same time its object is to intimidate and threaten.”
The lawyer argued that the partisan use of Article 186 by the president to satisfy such needs threatened to make one who is the head of the state and represented the unity of the republic a “football of the contending factions”.
“No questions of law of public importance have been raised in the reference that requires an opinion from this hon’ble court. All that is sought is that the transient political expediency of the day be declared a constitutional principle,” the written submission read.
This content was originally published here.