‘Constitutional deviations would not be tolerated any more by independent courts’

Syed Ali Zafar,
Advocate Supreme Court

Interview

Pakistan Tehreek-e-Insaf (PTI) Senator and leading constitutional jurist Barrister Syed Ali Zafar says that it is a flawed and legally incorrect notion that the two similar letters – one written by Imran Khan, and the other written by Chaudhry Shujaat Hussain — were treated differently by the Supreme Court (SC) of Pakistan.

He argues that the PTI’s parliamentary party decided to vote in favour of Pervaiz Elahi in the election for the Punjab chief minister and they duly intimated the same to all its members. The PTI’s 25 defectors were de-seated for violating the decision of the parliamentary party and the SC emphasized the same principle in the Chaudhry Shujaat Hussain case, he adds.

“When the parliamentary party has taken a decision, the party chief’s decision has no constitutional or legal value.”

Moreover, in the PTI’s case, the party head Imran Khan also directed MPAs to vote for Pervaiz Elahi. Hence, both the parliamentary party and the party head were on the same page, he said.

In his interview with Bol News, Barrister Zafar explains his case and a lot more…

Why this controversy over the article 63-A? Why are different interpretations being made by lawyers, experts and lawmakers? Is there an ambiguity in the Constitution?

Syed Ali Zafar (SAZ): There is no ambiguity in Article 63-A of the Constitution. In the recent case regarding the defections of the lawmakers, facts are crystal clear. The parliamentary party of the Pakistan Muslim League-Q (PML-Q) consists of 10 members, who all voted for Pervez Elahi on July 22 in the election for the chief minister Punjab.

The Article 63-A is three-fold. Its first part says directions to be issued by the parliamentary party to whom and how to vote in the election of the chief minister. It does not say that these directions have to be issued by the party head. The second part contains that defection would be applicable if the member violates the direction of the parliamentary party, while the third part says a member, who violates the decision of the parliamentary party would be de-seated. After that the party head comes into the fray and would decide to issue show-cause notice to the defector, give him a personal hearing and send the reference to the Assembly speaker, who would send the same to the Election Commission of Pakistan for de-seating the dissident member.

In this case, the PML-Q’s 10 members did not violate parliamentary party decision despite the fact that their party head Chaudhry Shujaat Hussian had given a different direction. Hence, Article 63-A is not applicable to them. Even a fresh law student understands this.

What’s your opinion on the Supreme Court judgment on the Punjab Chief Minister election?

SAZ: The judgment is a historic one which upheld the rule of law and protected the Constitution. The Punjab Assembly Deputy Speaker committed a grave illegality by discarding 10 votes of the PML-Q and installed a chief minister, who was not constitutionally elected under the Article 130 (4). Hence, a usurper was ruling Punjab. This crisis was leading to chaos. But the Supreme Court rightly and expeditiously decided to put an end to the crisis. I hope the politicians would learn that the constitutional deviations would not be tolerated any more by independent courts. This judgment should serve as a lesson.

The government is crying foul and trying to make the honourable three-member SC bench controversial. What can this lead to?

SAZ: The reaction of the government and some politicians is unfortunate. The Supreme Court judgments decide a case in accordance with the Constitution and the law. The PTI’s Deputy Speaker in the National Assembly decided to discard motion of the vote of no-confidence and the PML-N, the PPP challenged the ruling in the apex court where the same judges –Chief justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar — were part of the bench. The PTI requested for the constitution of full-court, but it was declined. The SC heard arguments and declared the Deputy Speaker National Assembly’s ruling unconstitutional. Resultantly, the voting on the no-confidence motion took place and the PTI government was sent packing. The entire opposition parties hailed the judgment and the PTI accepted it. But now, the Deputy Speaker Punjab Assembly rejected 10 votes in violation of Article 63-A and the PML-N, its allies and their lawyers could not render any valid reason to defend this unconstitutional act. The Supreme Court, therefore, rightly dismissed it.

The PML-N and its allies tried to use bullying tactics for the formation of a full-court, but the SC turned down their plea. Then they tried to build pressure by saying that they would not accept the judgment. However, their bullying tactics failed. The Supreme Court stood strong, and was supported by the public. The criticism directly on a judge amounts to contempt of court, but the judges showed judicial restraint.

Were the 25 MPAs of the PTI de-seated on the letter of the party head? Then why did the same not apply to the PML-Q chief’s letter? Why was the treatment different?

SAZ: A totally fabricated and legally incorrect preposition is being discussed in the national media that 25 defector members of the PTI were de-seated by the Election Commission of Pakistan on a letter issued by the party head Imran Khan, and why was the same principle not followed in the case of the PML-Q chief.

The PTI’s dissident members of the Punjab Assembly took the stance that they were unaware of the directions given by the parliamentary party about voting for Pervaiz Elahi for the slot of Punjab chief minister.

The meeting of the parliamentary party was held on April 1. Its decision was reported in the press the next day, while notices to all MPAs were issued on April 2 by the chief whip, and another notice was sent on April 4 by PTI General Secretary Asad Umar. In yet another meeting the same decision was reiterated, and another notice was sent on April 7 for the third time.

The minutes of both the meetings were produced, and the same was reported in the media and discussed in programmes. The voting took place in front of the entire nation and was covered live by the electronic media.

A fifth show-cause notice was issued on April 16 and the MPAs chose not to appear before the party head. Hence they were rightly declared to have defected.

However, in the case of the PML-Q, its party head sent a letter contrary to the decision of the parliamentary party which was not permissible under Article 63-A.

Does a full court judgment of 2015 suggest that the party head is supreme and is the same applicable in the case of Punjab Assembly? 

SAZ: This argument was extended by the PML-N and its allies that the Supreme Court 2015 judgment in Rawalpindi Bar Case allegedly decided that the party should issue directions to the members for vote, and Article 63-A would become applicable on its violation.

But the Supreme Court rightly rejected it. If there is more than one judge, each one of them came to the same decision but each may have different reasoning to reach the conclusion. The passing remarks and observations are not relevant to the decision. In the 2015 judgment, there were 17 judges to decide whether there is a basic structure of the Constitution and the democracy was part of it and whether any provision of 18th Amendment, including 63-A, was contrary to the spirit of the Constitution. At that time, there was no issue before the court regarding interpretation of the Article 63-A. Most of the judges agreed that the Parliamentary party was authorized to issue voting direction, and Article 63-A would be applicable on its violation. Justice (retired) Sheikh Azmat Saeed held that article 63-A was not contrary to the concept of democracy, but while giving reason to his decision he inadvertently made a passing observation that a party head may issue directions for voting. This observation was contrary to the article 63-A.

Justice Umar Ata Bandial agreed with Justice Azmat to the extent that article 63-A is not against democracy, but he had not agreed to the passing remarks.

The PML-N and its allies are wrongly using it for their benefit.

Is it possible that the 25 PTI defectors are restored by the SC in appeals? Is this scenario possible?

SAZ: Filing of appeal is their right and it is for the Supreme Court to decide their fate. In my opinion it is merely an academic issue because subsequent to the decision of the ECP, by-elections have already taken place, new members got elected and they participated and voted in the election of chief minister held on July 22 in the light of the consent orders of the Lahore High Court and the Supreme Court. All these matters could not be reserved. Hence, appeals of 25 defectors have become infructuous.

All the political parties take their cases to courts instead of solving them in the parliament. Don’t you think that this practice should stop now?

SAZ: I totally agree that issues have to be decided in the Parliament at the political level through debate and dialogue. However, if the politicians are so irresponsible and decisions are made by custodian of the House in an unconstitutional manner as in the case of Deputy Speaker of Punjab Assembly, then there is no option but to go to the court.

Are the political parties justified in criticizing a court decision if it is against them?

SAZ: I believe that healthy criticism of a judgment helps the working of courts. If a mistake has been made in a judgment, it could be corrected in the future. However, the criticism should be on a judgment not on judges. A constitutional forum has been provided to move a complaint against the conduct of a particular judge. Unhealthy criticism and attacks on judges are unacceptable.

The Judicial Commission has no rules to elevate judges to the apex court and bar association and councils have been criticizing elevation of junior judges. What’s your take?

SAZ: It is proposed that the appointment of judges must be made on the basis of seniority and junior judge promotion should be based on sound reasoning. A senate committee under my chairmanship is pondering upon the matter to introduce a constitutional bill in the parliament to this effect.

What were your failures as president SCBA?

SAZ: I love this legal profession and would like to dedicate myself to the betterment of the legal community. I got a chance in 2015 when the lawyers approved me as an elected president of the SCBA — the highest and the most important legal body. The tenure of one year was too short, but I prioritize my aims and objectives and tried to accomplish them. The subsequent incumbents seek my guidance and I am involved in decision-making as well.

Relations between bar and the bench have never been ideal. Why is that?

SAZ: Bar and the bench are two wheels of the same chariot and no legal system could work unless there is harmony among them. Relations have their ups and down and have gone from close to confrontational. I believe both sides need to be more open and in particular respect one another.

Why have bar associations failed to cater to the problems of common lawyers? 

SAZ: It is true that bar councils are not as effective as they should be. We need to make two reforms. The members of Pakistan Bar Council, the top supervisory body of lawyers, should be directly elected by an electorate comprising lawyers enrolled holding practice licenses of high courts and the Supreme Court. Secondly, the members of bar councils should be barred from becoming office bearers of bar associations because it’s a clash of interest.

Culprits of white-collar crimes are seldom convicted in Pakistan. What’s the solution?

SAZ: To improve the rate of conviction in white-collar crimes, we need expert investigators who know all the relevant process and procedure to collect evidence. Secondly, investigation and prosecution wings should work independently. In Pakistan, the investigation controls the prosecution. The strength of judges should be increased and the prosecution should send the cases for trial where it is sure that conviction would be passed. Courts are inundated with cases. Most cases end in acquittal which affects the credibility of the accountability process. Judges must be trained so that they are able to try and decide white-collar crime cases.

Should the powers of the Supreme Court be curtailed? Is it possible to do without a two-thirds majority?

SAZ: It is a misconception that the power of the Supreme Court could be curtailed. I am well aware of article 191 of the Constitution. Parliament has made a law to regulate the procedure of the apex court and not to curtail its power. An amendment could be made in the SC rules. But no Constitutional amendment could be made for the curtailment of the power of the judiciary.

The PML-N government introduced certain amendments in the NAB law. Don’t you think they are person specific?

SAZ: There are two parts of the recent amendments made in National Accountability Law. Some of them would improve the law and I and my party, the PTI, support them such as the right of bail given to the accused, cutting down the power of the chairman regarding arrest and enhancing the role of the prosecutor general. The Second relates to changes in substantive law which are targeted towards acquittal of political figures in pending cases as well as of decided cases. Therefore such amendments have been challenged and the case is pending in the Supreme Court.