Justice Jamal Mandokhel said that the questions posed by the president through the reference are of political nature, therefore, they cannot be replied in a manner proposed by him

In his dissenting note issued Thursday with regard to judgment on the presidential reference, Justice Jamal Khan Mandokhel of the Supreme Court held that the questions posed by the president through the reference are of political nature, therefore, they cannot be replied in a manner proposed by him. “In view of the principle of trichotomy of powers, in my opinion, it is not desirable for this court to engage itself in resolving sensitive political issues,” Justice Mandokel said.

The judge said that the wordings of Article 63-A are clear enough and free from any doubt to judge the intent of the Constitution’s framers.

“Thus, its needs no further interpretation,” Justice Mandokel said, adding that the judges, while interpreting any provisions of the Constitution, should limit themselves to a fair reading of the words of Constitution and the intention of its framer, and no more. Similarly, in his dissenting note, Justice Mazhar Alam Khan Miankhel held that it is for the Constitution makers to remove the cancerous tumor of defection through a surgical operation. The judge said he may agree with the argument that the defection/house trading is a cancer and we have to eradicate the same by curbing it with an iron hand.

“I may agree to certain extent with this proposition but this menace could not be curbed by the stroke of my pen,” Justice Miankhel said, adding that again it is for the Constitution makers to remove this cancerous tumor through a surgical operation.

“I remain kept on waiting for the majority judgment by my learned brother Judges (Umar Ata Bandial, CJ., Ijaz ul Ahsan and Munib Akhtar, JJ.) but the same has not been delivered till date,” Justice Mazhar Alam Khan Miankhel said, adding that he was going to be superannuated on 13.07.2022; therefore, he decided to release his judgment (dissent note) comprising reasons in support of his short order dated 17.05.2022 (PLD 2022 SC 488), accordingly.

Justice Miankhel held that this court has had almost a similar approach to interpretation of a Constitutional provision. The judge referred to Al-Jehad Trust v Federation of Pakistan (PLD 1996 Supreme Court 324), wherein it was held that, “…a written Constitution, is an organic document designed and intended to cater the need for all times to come.

“It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people,” the judge quoting the judgment said. Thus, the approach, while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively.

The interpretation cannot be narrow and pedantic. But the court’s efforts should be to construe the same broadly, so that it may be able to meet the requirement of ever changing society.

Justice Mazhar Alam Khan Miankhel noted that Article 63-A, after the 18th Amendment supra, is very much there and the legislature after that has never deemed it appropriate to go for further changes and amendments to it. “All the questions referred to this court, with the cumulative effect, are of the type that answer to any question in the affirmative would lead this court to exceed and overstep its domain,” the judge said, adding that this in other words would mean that this court is putting something new in the text of the Article which is even not the mandate of the Constitution.

“To me, the entire provision of Article 63-A as reproduced above is very plain and simple and I find nothing which could hardly need any interpretation other Reference No.1 of 2022 etc than what its language provides,” Justice Miankhel questioned.

“In my view, it’s a complete code in itself, which provides a comprehensive procedure regarding defection of a member of Parliament,” the judge said, adding that it does not admit interpretation and as such the questions asked through this residential reference are answered in the negative.

The judge, however, said if the Parliament deems fit or appropriate may impose further bar or restriction upon the defectors. “Similarly, Constitutional Petitions No.2 and 9 of 2022 are dismissed, accordingly”, Justice Miankhel concluded.

It is pertinent to mention that a five-member bench of the apex court headed by Chief Justice Umer Ata Bandial May 17 while issuing its verdict on Presidential Reference, seeking interpretation of Article 63A had held that dissident members of a parliamentary party could not cast votes against party’s directives. Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhel Thursday issued their respective dissenting notes.

Detailed reasoning from the majority judges — Chief Justice Umer Ata Bandial, Justice Ijazul Ahsen and Justice Munib Akhtar — was not yet issued till filing of this story. It is expected that it may be issued late night or Friday (July 8).