ISLAMABAD : The Supreme Court on Thursday unanimously accepted a review petition against its 2022 verdict related to the defection clause under Article 63-A of the Constitution.
Through its May 17, 2022 verdict, the SC had declared that votes cast contrary to the parliamentary party lines in four instances outlined in Article 63-A should not be counted. Today’s ruling means that in any future legislation, the ballots of lawmakers who vote against party policy will be counted.
These four instances are the election of prime minister and chief minister; a vote of confidence or no-confidence; a Constitution amendment bill; and a money bill. Today’s verdict could potentially provide major relief to the government in its attempts to garner the required support of amendments to the Constitution, multiple of which pertain to the judiciary.
The 2022 response to the presidential reference filed by then-president Arif Alvi was a 3-2 split decision, with then-chief justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar being the majority verdict authors.
Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail were the dissenting judges, who had said that any further interpretation of Article 63-A would amount to “rewriting or reading into the Constitution”. The Supreme Court Bar Association (SCBA) — the petitioner in the case — had also contended the same. A five-member bench — headed by CJP Qazi Faez Isa and also including Justices Naeem Akhtar Afghan, Aminuddin Khan, Jamal Khan Mandokhail, and Mazhar Alam Khan Miankhel — resumed hearing today the review plea filed by the Supreme Court Bar Association (SCBA) in June 2022.
Article 63-A aims to restrict the voting powers of lawmakers by making them bound to the decision of the “Party Head” — whoever is formally declared the head of the party. The penalty for violating Article 63-A is disqualification from the National Assembly and the vacation of the defecting lawmaker’s seat, the Constitution states. Justice Afghan had been included after Justice Munib Akhtar — part of the bench that originally heard the case — and senior puisne judge Justice Syed Mansoor Ali Shah successively chose not to sit on the larger bench. In a previous hearing, CJP Isa had poked holes in the opinion rendered by the previous larger bench. On Wednesday, the court dismissed objections raised by Zafar, Imran’s counsel, on the bench’s constitution in light of a recent amendment ordinance. During today’s hearing, Zafar said he did not wish to be part of the case if his client was not being allowed to appear via video link. However, CJP Isa then asked him to assist the court, which he agreed to. “It was difficult to see how the plain text of the Constitution prohibited dissident legislators’ votes from being counted,” he said. However, Rahim highlighted, the “review petition was fixed just days after a constitutional amendment seeking to destroy the Supreme Court failed to pass”. He further noted that the “review bench was formed without Justice Munib Akhtar despite this chief justice having expressly held that review petitions are always heard by the author of the original verdict”. “And the bench itself was the gift of a presidential ordinance, whereby the executive has tried its best to commandeer the judges,” he added. Barrister Rahim also emphasised: “That this precisely coincides with opposition party members claiming they are being pressured to vote in favour of the new Dogar Courts amendment has thrown the doors open to a new and sordid era for the justice system.” At the outset of the hearing, CJP Isa inquired Zafar if he was able to meet Imran as per the court’s directives, to which the lawyer replied in the affirmative. “Yes, I met him yesterday but it was not in private. There were jail authorities present during the meeting,” Zafar lamented. He stated that Imran wanted to speak before the court himself and present his arguments via video link. “Okay, let’s move forward. You may present your arguments,” the chief justice said, addressing Zafar, who replied that Imran be allowed to put forward his contentions first. “Ali Zafar sahib, you are a senior lawyer and a senator as well. You know how court proceedings work,” Justice Isa noted.
The PTI senator then stated that Imran had objections on the bench. “If the permission for the PTI founder to appear via video link is not granted, then he has told me to state a few things before the court,” Zafar said.
The lawyer insisted that he has to work according to the directions of his client, at which the top judge remarked, “You are not only your client’s counsel but also an officer of the court.”Justice Mandokhail also recalled: “We have also been lawyers [but] we did not listen to every directive of our client. We only followed what was as per the law.”
Here, CJP Isa observed that five minutes had been “wasted” over the issue, at which Zafar said he would be done with his argument and out of the courtroom in seven minutes. “Very good, we also want the same,” the CJP quipped.
Zafar then pointed out that the government wanted to bring some amendments, referring to the proposed constitutional package for which the ruling coalition is trying to garner the required support after a failed first attempt to introduce its draft in the parliament.