ISLAMABAD: The defecting members can be de-seated but not disqualified, PPP lawyer argued in Supreme Court on Wednesday, during a hearing on a Presidential reference regarding the interpretation of Article 63-A.
A five-member larger bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial heard Presidential Reference seeking interpretation of Article 63-A.
Farooq Naik told the court that the disqualification period has been given in Article 63 and added that the election commission has been entitled to take a decision over 63-A reference in the 18th Amendment.
“Presidential reference is not against Article 63-A, it relates with sub-clause 4 of Article 63-A,” the counsel said.
“Supreme Court had interpreted Article 62-i-F,” Justice Ijazul Ahsan observed.
“The legislators had not fixed disqualification in 63-A for a defector,” Naik argued. ” In Article 63-A compliance to the party’s policy has been stressed at four points. Loyalty is a basic constitutional principle and Article 63-A was meant to ensure loyalty with the party,” CJP Bandial remarked.
“We have to see the constitution as a whole,” Justice Bandial said. “A party’s ticket-holder gives oath, to which party he belongs,” Justice Munib Akhtar observed. “A ticket-holder also gives oath in paper to remain bound to the party’s policy and discipline,” Justice Munib further said.
“A member could not be subjected to servitude,” Farooq Naik said. ” If a citizen becomes a slave when he/she gets a government job,” Justice Ijazul Ahsan questioned. “The punitive action has been written in 63-A if a member violates the party policy,” the lawyer said.
“Disobeying an oath is dishonesty,” Justice Munib said. “A defecting member get elected over a political party’s ticket. Cancer destroys body cells, defection from the party has also been called cancer,” Justice Munib remarked. ” Defection from the party could not lead to disqualification,” Naik argued.
“If the dishonesty does not lead to disqualification and disloyalty is not dishonesty,” Justice Ijaz asked. “Disloyalty is a strong word and not described in 63-A,” Farooq Naik said.
“If it is dishonesty or disloyalty both have consequences in the constitution, the defecting member will be unseated,” the PPP lawyer said.
“Disqualification is a major punishment, which could not be given without trial,” Justice Mandokhel remarked.
“An independent who joined a party after winning the election have not taken the oath,” the court observed.
“A legislator does not take an oath to accept all instructions of a party’s head,” the lawyer said. “The defecting members can be de-seated but not disqualified,” he further said.
“It is also the future of Article 63-A that the party accepts the member’s apology,” CJP remarked. “This article has been referred in only one case since 1998,” Justice Bandial said. “It means party heads didn’t consider this article seriously. Why defectors accepted back in the party, it is flexibility in politics” the chief justice asked. “Rigidity in politics causes chaos,” Farooq Naik said.
The bench adjourned further hearing of the case till tomorrow
