It would be ‘better if the assembly’s fight was fought inside the assembly’: CJP "The question is whether individual choice can be different from the party's stance," the chief justice said.

It would be ‘better if the assembly’s fight was fought inside the assembly’: CJP Umar Ata Bandial

Says court will play the role of mediator between the political parties to ensure democracy stays intact

Apex court decides to form larger bench to hear presidential reference seeking advice on Article 63-A

ISLAMABAD ( Web News )

Judge Supreme Court of Pakistan Justice Munib Akhtar observed on Monday that after joining a political party, a member’s individual vote during no-confidence proceedings was considered a “collective right”.

He said that according to Article 95(ii), which deals with the procedure to bring in a no-confidence motion against the prime minister, a member’s individual vote had no “status”, adding that the court had previously made similar observations in cases related to former prime ministers Benazir Bhutto and Nawaz Sharif.

After joining a political party, a member’s vote was considered a “collective” right, he added.

Justice Munib Akhtar made the observation during the hearing of a plea filed by the Supreme Court Bar Association (SCBA) President Chaudhry Muhammad Ahsan Bhoon Advocate, seeking the top court’s intervention to prevent “anarchy” and direct all state functionaries to act in accordance with the Constitution and the law ahead of the no-trust vote against Prime Minister Imran Khan.

A two-judge bench, comprising Chief Justice of Pakistan Justice Umar Ata Bandial and Justice Akhtar, heard the petition.

Opposition leaders — PML-N President Mian Muhammad Shehbaz Sharif, PPP Chairman Bilawal Bhutto Zardari and JUI-F Chief Maulana Fazlur Rehman, Balochistan National Party-Mengal (BNP-Menga) Chief Sardar Muhammad Akhtar Jan Mengal— were also present during the hearing.

During the hearing on Tuesday, Justice Umar Ata Bandial said the bar wanted that MNAs be allowed to vote for whoever they wanted, remarking that if the SCBA went into too much detail, Justice Akhtar’s observation would become an “obstacle”.

“The question is whether individual choice can be different from the party’s stance,” the chief justice said.

The bar’s counsel, Mansoor Usman, argued that parliamentarians should have the right to vote in their individual capacities at which Justice Akhtar asked which article allowed that.

The counsel mentioned Article 66 — related to members’ privileges — at which Justice Akhtar again asked how it gave the right to vote in individual capacity.

Article 66 protects parliamentary proceedings, the judge observed, adding, “According to Article 63, the case of a member’s vote can be brought to the court.”

The chief justice added that any member’s right to vote was “not absolute”.

During the hearing, the SCBA counsel said National Assembly Speaker Asad Qaiser had summoned the session on March 25 — 17 days after the opposition submitted the no-confidence motion — whereas, according to Article 95, the session had to be called within 14 days.

He further said the no-confidence resolution would be moved in the NA on March 25 while it could not be adjourned indefinitely before voting on the motion.

All of this was the assembly’s “internal matter”, the chief justice observed, adding that it would be “better if the assembly’s fight was fought inside the assembly”.

“The court has to ensure that nobody’s right is affected and nobody is deprived from voting because of any event,” he said. “Voting is a constitutional right of the members.”

The Supreme Court had to decide in accordance with the law and the Constitution, Justice Bandial said, adding that the court had not yet been “convinced to interfere in the assembly’s proceedings”.

All the points raised in court could be taken to the NA speaker, he observed.

Chief Justice Bandial said political parties should show their power in parliament, observing that the police could not “raise a hand” on any lawmaker. However, “if MNAs break the law, police will take action,” he added.

“The court will play the role of mediator between the political parties to ensure democracy stays intact,” the CJP said.

Meanwhile, Attorney General of Pakistan (AGP) Barrister Khalid Jawed Khan told the court that the government had no objection to the SCBA’s petition.

Justice Akhtar said perhaps Article 254 — which states that the failure to comply with requirement as to time does not render an act invalid — had been “misunderstood”.

The AGP responded that the court was not discussing parliamentary proceedings [of the no-confidence vote], otherwise he would have mentioned the reason for the delay.

He said the SCBA had appealed to all agencies to act in accordance with the law and its petition was also related to the law and order situation amid upcoming rallies in the capital.

“After talking to the prime minister, I would like to clarify something to the court,” the attorney general said. “There will be no crowd outside the assembly during the session. No [lawmaker] will be stopped by crowds.”

The AGP told the court that police and relevant agencies had been issued orders to not allow the public to enter the Red Zone during the NA session.

Islamabad Inspector General of Police (IGP) Qazi Jamilur Rehman, who also appeared during Monday’s hearing, informed the court that section 144 of the Code of Criminal Procedure was already in force in the capital and had been broadened to include the Red Zone.

The people protesting at the Sindh House did not come in the form of a group, he said, adding that 15 of them, including two MNAs, were arrested during Friday’s incident.

“JUI-F supporters too tried to enter the Sindh House,” he said, adding that they were stopped at the Balochistan House. The capital police chief expressed “shame” over the incident.

Chief Justice Bandial remarked that what happened at the Sindh House did “not seem to be the police’s failure”. “The main issue is related to stopping MNAs from voting.

“Something happened at D-Chowk happened recently, the effects of which can be seen”. Referring to the last hearing on March 19, he said the purpose of holding the hearing on Saturday had been to direct everyone to act in accordance with the Constitution.

The CJP said it would be seen where the investigation into the Sindh House incident led.

The SCBA, in its plea, had sought the court’s directions for all state functionaries “to act strictly in accordance with the Constitution and the law and they be restrained from acting in any manner detrimental to and unwarranted by the Constitution and the law”.

It had also demanded that officials tasked with the responsibility to maintain law and order in Islamabad must “prevent any assembly, gathering, public meetings and/or processions that could hamper the assembly proceedings or participation of members in the session”.

AGP Khan said that action would be taken against dissident members under Article 63-A in accordance with party policy.

“There is no allegation of horse-trading against the ruling party,” he said, adding that as the attorney general, he would not level allegations against any other party as well.

“Benazir Bhutto had ordered that [parliamentarians] be forcibly brought during the no-confidence vote. Her supporters were kept in places like Changa Manga. If any member does not want to come to the session, he will not be brought forcibly.”

The attorney general further said that the party head could initiate action under Article 63-A.

Justice Akhtar inquired what would happen if an MNA goes to the assembly despite being stopped by their party. “People voting against the party policy cannot be stopped,” the AGP replied, adding that government instructions were “not necessary” in this regard.

He assured the court that parliamentary proceedings on the no-confidence vote would be conducted in accordance with the Constitution.

The chief justice said that the matter was not just a legal issue but also a political one. Therefore, “ego should not be involved and the process should be completed amicably,” he said.

“If you fear clash, bring us the relevant material on March 24. If all the political parties are on one page, we will prepare a code of conduct,” the chief justice said.

Meanwhile the Supreme Court of Pakistan has decided to form larger bench to hear plea seeking interpretation of Article 63(A) of the constitution and discouraging ‘horse-trading’. Chief Justice of Pakistan had adjourned the hearing on the presidential reference till March 24.

Presidential reference for interpretation of Article 63 (A) filed in Supreme Court included four difference questions which are stated below.

What was asked in presidential reference?

  1. Whether defected members cannot be prevented from vote under Article 63(A) for violating party policy?
  2. Will the vote of defected members can be counted or not?
  3. Whether those who go against the party policy will be disqualified for life-time or not?
  4. What is the period of disqualification under Article 63(A)?

On the presidential reference, Chief Justice Omar Ata Bandial remarked that he wanted to hear the matter. The parties must come prepared. We have not issued notices to the Government allies.

He mentioned that if the allies want representation, they should submit requests. We will try to give decision on reference soon. Parliamentary proceedings will not be delayed due to presidential reference.

The Attorney General told the court that the assembly proceeding will not be affected by the presidential reference and no one will be stopped from using the right to cast vote. He added that what will happen after the vote, this is the real question in the reference.

The leaders of the opposition and the government, in their press talk outside the Supreme Court, defended their positions with respect to the National Assembly session being called on March 25 to take up the no-confidence motion, with the PPP and the PML-N calling out the NA speaker for “violating the Constitution”, while the treasury sides blaming their rivals for uniting to “save their corruption”.

Information Minister Fawad Chaudhry said the opposition’s criticism of the NA speaker was uncalled-for, adding that he was only following the rules. He accused the PML-N of trying to drive a wedge between the PTI and the military.

Adviser to the Prime Minister on Parliamentary Affairs Babar Awan also said that the speaker decided the date of the session as per the rules. “The Supreme Court has described the definition of Article 63-A and it’s well defined.”

Energy Minister Hammad Azhar said Pakistan was going through a “defining moment”, adding that “Naya Pakistan” would emerge victorious in the battle.

Meanwhile, Leader of the Opposition in the National Assembly Shehbaz Sharif thanked the SCBA for filing a petition with the top court on “this important matter”. He said the speaker could have called the session within the stipulated 14-day time, “but he deliberately delayed it to trap the opposition, expecting it would create a scene over the OIC meeting.”.

Bilawal Bhutto Zardari claimed the government, while trying to “run away” from the current situation, had “violated the Constitution”. He advised the NA speaker to consult his legal team before making any further moves on the directions of the government.

SCBA President Ahsan Bhoon said no institution had the right to violate the Constitution. He said the speaker should have completed the entire process within 14 days, but he opted for a “wrong move”.

“The speaker is going against the Constitution and declaring articles 54 and 95 redundant for the sake of supporting a party,” he alleged. “We just have the presidential reference under our advisory authority.”