Islamabad (Web Desk): The Supreme Court (SC) on Thursday unanimously accepted a review petition against its 2022 verdict on the interpretation of Article 63(A) of the Constitution.
A five-member larger bench of the top court, presided by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Amin ud Din Khan, Justice Jamal Khan Mandokhail, Justice Mazhar Alam Miankhel and Justice Naeem Akhtar Aghan, announced the short order after hearing the review petition filed by the Supreme Court Bar Association (SCBA).
The court ruled that the defecting lawmakers’ votes should indeed be counted and said that the detailed judgment would be issued later on.
A five-member bench, headed by Chief Justice of Pakistan Qazi Faez Isa and comprising Justice Amin ud Din Khan, Justice Jamal Khan Mandokhail, Justice Mazhar Alam and Justice Naeem Akhtar Afghan, announced the short order.
The chief justice said that the review petition of the Supreme Court Bar Association (SCBA) was accepted unanimously, adding that the detailed verdict would be issued later on.
Earlier during the proceedings, Pakistan Tehreek e Insaf (PTI)’s lawyer Barrister Ali Zafar took the stance that his meeting with PTI’s founder was not held independently. The lawyer said that the PTI founder had requested that he wanted to give arguments himself before the bench through video link.
On this point, the CJP said that you were making unreasonable request. He said what secret things did you have to discuss with PTI founder? You were only supposed to discuss a constitutional issue, he remarked.
Ali Zafar said that the PTI founders had objection on formation of bench and stated that they will not be a part of proceedings.
The court on the occasion appointed Barrister Ali Zafar as amicus curiae and asked him to assist the bench.
Ali Zafar, as amicus curiae, said that the objection was not against any personality, and instead it was on the formation of bench.
He said that the original petition was related to the vote in the no-confidence motion but the top court linked the presidential reference with the constitutional petitions. The court disposed of the constitutional petitions by declaring that it had given an opinion on the reference, and the review petition’s scope was limited, he said.
The CJP said that one may be unhappy with the Constitution or the death penalty, but everyone was bound to implement it.
“Can a judge take an oath and saying that he is not happy with this provision of the Constitution,” he questioned.
Justice Faez Isa said that the head of the party had the authority to give or not to give a declaration of defection to someone. The members of the assembly or political parties were subordinate to their leader, not the judges, he said.
On the query of the bench, Farooq H. Naek said that party elections were held under the Election Act, in which the decision of the party chief was taken.
The CJP said that the decision of Article 63 A was a majority decision by the margin of one judge. He questioned that if the opinion of one judge was heavy on the parliament.
He asked that whether the court should send the matter to the President to decide which opinion he agreed with.
Additional Attorney General (AAG) Aamir Rehman opposed the option and said that the constitutional petitions had also been dealt with the reference. The matter of dealing with the constitutional petitions could not be sent to the president, he added.
The chief justice said that if Article 63-A was clear, then what was the need for its interpretation. Appeals of disaffected members also have to come to the Supreme Court, and if the court decision leads to disqualification, the appeal will be ineffective, he remarked.
The AAG said that the decision on Article 63A was full of contradictions. He said that on the one hand it said that vote was a fundamental right but at the same time this right was abolished on the direction of the party.
It is pertinent to mention that in its May 17, 2022, the SC announced that parliamentarians cannot vote against their party policy under Article 63-A, adding that the votes of dissident lawmakers will not be counted.
The top court, issuing its verdict on the presidential reference that sought its interpretation of Article 63-A of the Constitution, which pertains to the disqualification of lawmakers over defection, said that the “article concerned cannot be interpreted alone.”
The decision by the SC was a 3-2 split decision, with a majority of the judges not allowing lawmakers to vote against the party line in four instances outlined under Article 63-A. These four instances are the election of a prime minister and chief minister, a vote of confidence or no-confidence, a Constitution amendment bill, and a money bill.
Later, the Supreme Court Bar Association’s (SCBA) requested the SC to direct all state functionaries to act strictly in accordance with the Constitution and the law, and ask them to restrain from acting in any manner detrimental to and unwarranted by the Constitution.
“The apex court’s opinion about not counting the dissident’s votes is against the Constitution and equal to interference in it,” the SCBA said.
According to Article 63-A of the Constitution, a parliamentarian can be disqualified on grounds of defection if he votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, in relation to the election of the prime minister or chief minister, or a vote of confidence or a vote of no-confidence; or a money bill or a Constitution (amendment) bill”
The Article says that the party head has to declare in writing that the MNA concerned has defected but before making the declaration, the party head will provide such member with an opportunity to show cause as to why such declaration may not be made against him.
After giving the member a chance to explain their reasons, the party head will forward the declaration to the speaker, who will forward it to the chief election commissioner (CEC).
The CEC will then have 30 days to confirm the declaration. If confirmed by the CEC, the member “shall cease to be a member of the House and his seat shall become vacant”.