Presidential Reference: AGP concludes arguments in Article 63 (A) hearing

ISLAMABAD: Attorney General Khalid Jawed Khan resumed his arguments over presidential reference seeking the Supreme Court’s interpretation of Article 63 (A) of the Constitution, ARY News reported on Tuesday.

The five-member bench of the apex court headed by Chief Justice Umar Ata Bandial heard the arguments of the attorney general with regard to the questions asked in the presidential reference.

“Defection from the party could not be termed a routine political activity,” AGP Khalid Jawed while resuming his contentions said. “The constitution describes tenure of the assembly but not its members, the membership ends with dissolution of the assembly thus members term of office attached with the assembly,” AGP said.

“Disqualification till the assembly completes its term could not meet the objective of the Article 63 (A) and only life time disqualification could meet the intention of this Article,” AGP argued. “The question arises, if a defecting member after declaration can contest election or not,” he further argued.

“The disqualification period of a deviant member could be five-year or for life term, or until the end of the assembly’s term,” top state lawyer argued. The period of ineligibility of a defecting member who becomes neutral and votes against the party, has not been fixed,” AGP said. “Disqualification will be life time while the member indulges in criminal activities, while over misconduct ineligibility will be five years”.

The Attorney General divided the period of disqualification of a defector in four categories (i) The deserting member face no consequences (ii) defecting member becomes disqualified till the tenure of the assembly (iii) Defection brings ineligibility for five years (iv) Life time disqualification.

” A turncoat should not be allowed to contest the next election,” AGP suggested. “Theft could not be declared a noble deed, a thief is a thief and could not be noble thief,” Khalid Jawed argued.

“If the difference of opinion is deviation,” Justice Jamal Mandokhel questioned. ” The difference of opinion not means deviation. Raza Rabbani expressed his difference of opinion over the military court’s issue,” AGP said.

“Article 63 (A) talks about cancellation of membership not disqualification,” Justice Mandokhel said. “The matter comes to an end when there is no disqualification. If the election commission will inquire about defection or not,” he said.

“No proof is required in Article 63 (A), the party’s head will give declaration of disqualification,” Justice Ijazul Ahsan remarked. “Defection from party is not a mistake, it is deliberate,” Justice Ahsan observed.

“It will require several somersaults to determine life term disqualification,” Chief Justice Bandial observed.

“Nothing is said about lifetime disqualification in Article 63, while Article 63 (P) suggests temporary disqualification, however a false affidavit brings lifetime ineligibility,” Justice Munib Akhtar observed. “There are separate court decisions over enforcement of Article 62 (i) (F),” Justice Akhtar remarked.

“The party’s head is bound to issue show cause notice and getting the point of view of the member,” Justice Jamal Khan said. “It will be bad to punish an innocent than acquittal of 100 sinners. There might be 100 thieves but one may be honest among them,” Justice Jamal observed.

“Why the sword being dangled over an honest person over his opinion against the party’s policy,” Justice Mandokhel questioned. “Why the honest person not resigning from the seat before defection,” AGP questioned. “A member could not be forced to step down from seat,” Justice Jamal remarked.

“You are trying for three days for a stricter law. There is no stricter punishment than the death sentence still people murdered,” Justice Mandokhel remarked. “Why people defect and which powers make them defect,” Justice Mandokhel questioned.

“It is not an eligible question for judicial forum. Defectors will not allow a stricter law, if the entire system can be left at the mercy of 15 to 20 people,” AGP Khalid Jawed asked.

“I think your time of arguments has been concluded,” Justice Mandokhel said. “I will take some more time to complete my arguments,” AGP said.

Chief Justice Bandial said that the court is not legislature, it could only interpret the constitution. “Affidavits were demanded from the candidates after agreement over the matter by the parties,” CJP said. “There is cancellation of membership in Article 63 and not the ineligibility, in Article 63 (A) there is no period of the membership cancellation.”

“The court’s opinion will be applicable at defecting members of all parties. Article 63 (A) could not be described separately from other articles. The court has given its verdict over it,” AGP argued.

“The constitution makers wrote disqualification where they deem it necessary, they didn’t use disqualification in Article 63 (A),” Justice Mazhar Alam Miankhel remarked.

After conclusion of the contentions from the Attorney General Khan, PML-N lawyer Makhdoom Ali Khan initiated his arguments before the bench. “I will give a brief summary today, while giving detailed arguments tomorrow,” PML-N counsel said.

“The vote of defecting member could not be stopped from counting,” Makhdoom Ali Khan said. “Can the vote counting can be stopped with amendment,” Justice Munib Akhtar asked. “Which clause gives the right of independent voting to the member,” he further questioned. “Article 65 gives the member the right to vote,” the lawyer replied.

“In Article 66, the right to vote is conditioned with the constitutional and parliamentary procedure,” Justice Munib said. “This right to vote has been restricted with Article 63 (A), which has objective to prevent defection from the party,” Justice Munib further said.

“Isn’t preventing defection a basic right of a political party, and this step of flouting the constitution be stopped for stability of the system,” Justice Akhtar asked.

The bench asked PML-N lawyer, if he will complete his arguments within two hours tomorrow.

The court adjourned further hearing of the case till 11:30am tomorrow.