Imran says remarks about judiciary in context of 1997 case

ISLAMABAD: Prime Minister Imran Khan on Tuesday assured the Supreme Court that he had great respect and regard for the top judiciary as well as its judges, saying that at the Kamalia public gathering he was referring to the 1997 apex court storming and the circumstances leading to the controversial removal of the late chief justice, Sajjad Ali Shah.

“It was in that specific context that he was referring to his apprehensions,” Attorney General of Pakistan (AGP) Khalid Jawed Khan quoted the prime minister before a five-judge Supreme Court bench that had taken up the presidential reference, seeking interpretation of Article 63-A of the Constitution.

At the outset of Tuesday’s hearing, the AGP explained that he had talked to the prime minister about the concerns shown by the court on Monday regarding his speech in Kamalia.

He said the PM asked him to convey his message to the court, reiterating unreservedly his full faith and confidence in the integrity and impartiality of the judges of the apex court.

Chief Justice of Pakistan Umar Ata Bandial, who was heading the larger bench, observed that if the court assumed defection as something very dishonourable that required lifetime ban from entering the parliament, would then the court not enter the realm by trying to make the Constitution work in a certain manner or impose a system of governance.

The chief justice observed that the AGP was pleading that integrity among lawmakers be translated as ensuring party discipline, but the Constitution stopped short of that.

AGP Khan, however, said for the last 15 to 20 years, the Supreme Court, through its judgements, had been trying to purify the process of elections by bringing transparency at the entry point before becoming a member of the parliament.

“Our endeavour is that the same transparency and purity should also come at the middle point,” the AGP contended, emphasising these 15 or 20 opportunists who always took advantage would never let the Parliament rid the house of defection.

While interpreting Article 63-A of the Constitution, AGP Khan said the court should infuse the universal concept of moral values.

What the court needed was to redeem over-arching democratic and constitutional values and the promise envisioned by our founding fathers, Mr Khan said, regretting that not a single conscientious person had resigned so far.

He emphasised that the elected members were bound by party discipline and if they reached a point where they could not conscientiously support the party in parliament or outside, the only option available was to resign as member of the assembly and the party.

Once there had been a declaration under Article 63-A of the Constitution that a certain member had defected, Article 62(1)(f) would automatically be triggered, the AGP said.

Justice Mazhar Alam Khan Miankhel observed that the framers of the Constitution had provided for disqualification and de-seating of the member in clear terms where they deemed it necessary.

During the hearing, Justice Jamal Khan Mandokhel wondered if someone voiced “a principled dissent” then would it be called defection, adding that it was the party head who could issue notice after hearing the members who defected before making up his mind.

“By imposing life-term disqualification, would the court not be punishing even those members who are honest and honourable,” Justice Mandokhel said, wondering which force let these members defect.

Justice Mandokhel also asked if the AGP considered de-seating of a member as something very small when in Balochistan people got killed or kidnapped, emphasising, “we should go into reasons which lead to defection”.

Losing a seat in the house is not something small but a very big punishment to the member, Justice Mandokhel observed, adding that when political parties, which had suffered defection at present or in the past, were silent about it why should the court fill the gap by imposing lifetime disqualification.

Justice Munib Akhtar highlighted the anomaly between Article 62 and 63 and questioned that if someone was de-seated for defection for five years, and after the disqualification period was over, decided to contest the elections, then would his rival at the time of filing of nomination papers take the plea before the returning officer that his disqualification entailed life-time bar. “This is the difficulty we are looking at,” the judge added.

Justice Ijazul Ahsan emphasised that the apex court had to strike a balance between disqualification for a limited period and for a lifetime by determining the correct intent of the framers of the Constitution so that it could serve the people and ensure continuity in a better way.

While pointing towards senior counsel Makhdoom Ali Khan, who was representing Shehbaz Sharif and Pakistan Muslim League-Nawaz (PML-N), Justice Munib Akhtar wondered that when forming a political party was a fundamental right would it also be the party’s fundamental right to maintain its integrity that no unconstitutional means destroyed the cohesion.

The AGP argued that articles 62, 63 and 63-A were the most important provisions of the Constitution as these determined as to who would represent the people, form government and run the country.