Defected Members' Votes Must Not To Be Counted For No-trust Motion: Barrister Ali Zafar

Barrister Syed Ali Zafar on Thursday said the votes of defected members of the National Assembly should not be taken into account in the vote on a no-confidence motion against their party's prime minister

ISLAMABAD, (UrduPoint / Pakistan Point News - 21st Apr, 2022 ) :Barrister Syed Ali Zafar on Thursday said the votes of defected members of the National Assembly should not be taken into account in the vote on a no-confidence motion against their party's prime minister.

Even if anyone was allowed to cast his / her vote, but that was not to be counted, he said in his arguments before a five-member larger bench of the apex court headed by Chief Justice of Pakistan Umar Ata Bandial and comprising Justice Ijaz Ul Ahsan, Justice Jamal Khan Mandokhail, Justice Munib Akhtar and Justice Mazhar Alam Khan Miankhel which heard the presidential reference seeking its opinion on Article 63-A of the Constitution.

During the course of proceedings, Raza Rabbani, as a parliamentarian, started his arguments in person. He said the Election Commission could review the declaration made by the party chief. The Commission was empowered to ensure that the evidence of the declaration was free from doubt and suspicion, he added.

He said a person who was not loyal to the party did not mean that he was dishonest. The affidavit given in the nomination papers was of affiliation with the party and the real oath was that which was taken as a member of the National Assembly.

He said Article 63-A warned the members not to vote against the party policy and the members knew that voting against the party would have consequences.

He said the Attorney General continued to cite examples of Western democracies that were irrelevant as political parties in Pakistan could not become institutions like those in other countries. Governments continued to be toppled by sending members from one place to another, he added.

The CJP said the Supreme Court was here for the supremacy of the Constitution.

Raza Rabbani said the campaign against the institutions was launched only after standing for the Constitution.

The Chief Justice said as long as there were adherents of the Constitution, criticism did not matter.

Raza Rabbani said Article 62(1)(F) did not apply to defection from the party and under Article 63-A, a dissident member was to be de-seated, not disqualified. If the purpose was to disqualify a dissident member, then the term would have been fixed in the Constitution, he added.

Addressing Raza Rabbani, Justice Munib asked that he (Raza) had cried when he voted for the military courts and stated in his speech that the vote was the trust of the party. He asked what would be the betrayal if he had resigned.

Raza Rabbani said he could have faced the situation after resigning.

After conclusion of arguments by Raza Rabbani, Pakistan Tehreek-e-Insaf's (PTI) counsel Barrister Ali Zafar argued that the court had to decide two questions, first was whether the punishment prescribed by Article 63-A was that a person was disqualified for life to be a member of the Parliament.

He said a bare perusal of Article 63-A provided that there were two types of consequences namely the member should cease to be a member and that the seat should become vacant.

He, however, contended that the court must consider the point that Article 63-A declared that the voting in the House contrary to the parliamentary party's directions was a violation and even an offence. So, in case it was proved that monetary or other considerations were obtained then Article 62(1)(f) should apply and the member would no longer be qualified to contest the next elections because he / she had committed an act of disloyalty, he added.

He said the act of the member was a breach of trust because it was akin to dishonesty and, therefore, Article 62(1)(f) should become applicable read with Article 63-A.

Barrister Zafar asked whether the votes of members of a parliamentary party, composed of a single party in the House, which was cast contrary to the directions of such a single parliamentary party could be counted at all in a resolution for a vote of no-confidence.

He said the courts were equipped with many moralities for the construction of constitutional provisions. One of the approaches to adopt the literal meaning was the textual approach and the other approach was "structural methodology i.e. purposive interpretation" of constitutional interpretation.

Barrister Zafar argued that while exercising the purposive approach the court could enquire into the history, identify the mischief and even apply a strained meaning when literal meaning was insufficient.

He relied on the British law, particular the judgments passed by Lord Diplock in the famous case of Brad Bear 1975 (3) All ER 158 and later in 1979 (1) All ER 286 at page 289 in which the court held that the courts were duty-bound to identify the target of parliamentary legislation. Their proper function was to see that the target was hit and not merely to record that it was missed.

He said in the light of Justice (Retd) Azmat Saeed's judgement in the case reported as PLD 2018 SC 105, the court could not read into the Constitution. However, he argued that the courts could mold and creatively interpret constitutional provisions in the light of the principle that constitutions were heirs of the past as well as testators of the future.

Barrister Zafar then delved in the historical background of Pakistan when after the independence, Quaid-e-Azam formed a Constituent Assembly and gave its ,members the task of giving Pakistanis a constitution. However, the Constituent Assembly failed to fulfill the task for their own reasons because they knew that the moment they would give the constitution, their purpose would be fulfilled and they would be nothing. But somehow regimes were put in place and then discarded under interim arrangements. Prime ministers were elected and then removed because their party member left them. However, then Zulfkar Ali Bhutto came who was a veteran politician and a very intelligent individual. It was Mr Bhutto who gave Pakistan its very first Constitution of 1973.

While highlighting Pakistan's constitutional history, he then told the court that when Bhutto was drafting the 1973 Constitution he came to the opposition and asked them to give him a counter-clause to vote of no-confidence clause at least for 10 years for democracy's sake.

According to Zafar, Bhutto knew that in case his party members leave him at some point then he could be ousted out of the government through a vote of no-confidence. So, he proposed to the opposition to insert an article in the Constitution providing that minority votes in the vote of no-confidence should not be counted at all. The opposition agreed to the proposal and in return got fundamental rights enshrined into the 1973 Constitution.

Furthermore, Zafar argued that a member, who committed the acts prescribed in Article 63A contrary to the directions issued by the parliamentary party to which he belongs, then the person would be breaching the trust reposed in him by the people who elected him and the parliamentary party to which he belongs.

He then compared the definitions of disloyalty and dishonesty with each other in accordance with the definitions contained in different dictionaries. He argued that disloyalty had been defined as being faithless, traitorous, betrayal by the intentional actions or omissions of a trusted person and that disloyalty had been said to be akin to dishonesty and even theft.

Barrister Zafar then raised an argument that since disloyalty was linked with trust, therefore, it would entail betrayal of fiduciary duty as well.

He argued that the fiduciary relationship that a member of the Parliament had with his parliamentary party and with the people was of similar nature that did not require any contractual trust and it was a fiduciary duty and fiduciary relationship.

Barrister Zafar then referred to the rule of ex turpi causa non oritur actio which was that no one could be benefitted from own wrong. He pointed out that the principle was that one should not be allowed to benefit from one's own wrong doing. "This principle of law prevents a person from profiteering from his or her wrongdoing." Zafar was going to connect his argument with those members who were members of PTI and had voted in the vote of no confidence against the violations of the parliamentary party to which they belonged.

Justice Jamal Khan Mandokhail asked what were the consequences of violating the Constitution, and whether there was a lifelong disqualification for every violation of the Constitution.

He asked how could dissident members be prevented from trying to vote and whether the party Chief could only take action against a member after casting of vote.

Zafar said only the courts could interpret the Constitution.

Subsequently, the Court felt the paucity of time and adjourned the case for further arguments till Friday.