ISLAMABAD: Chief Justice of Pakistan (CJP) Qazi Faez Isa Tuesday observed that whether a judge dissenting with a judgement would also be deemed having a conscience or not, adding that as to who are we to call someone with a conscience or not.
An apex court five-member newly constituted bench headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa heard the review petition filed by Supreme Court Bar Association (SCBA) against the judgement delivered on May 17, 2022 on the Presidential Reference seeking interpretation of Article 63-A of the Constitution. Other members of the bench are Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhel, Justice Naeem Akhtar Afghan and Justice Mazhar Alam Khan Miankhel.
The federal government and Pakistan Peoples Party (PPP) endorsed the review petition filed against the Supreme Court judgement delivered in 2022 on the defection clause of Article 63-A of the Constitution.
At the start of the hearing when Shahzad Shaukat, counsel for the SCBA, commenced his arguments, Barrister Ali Zafar, representing Pakistan Tehreek-e-Insaf (PTI), came to the rostrum and submitted that he wanted to raise an objection over the constitution of the bench, hearing the review petition. The CJP asked the PTI counsel that he had no right of audience in the review petition, asking him to sit down and let the SCBA counsel argue.
Ali Zafar, however, insisted at which Justice Isa asked him to sit down, and said he would be heard later.
Meanwhile, the CJP said that Justice Munib Akhtar was invited to sit on the bench, however, the senior judge maintained his earlier position, expressed in his letters raising objection to the bench. Justice Isa said that he then recommended to the committee that Justice Syed Mansoor Ali Shah, senior most judge, to be made part of the bench, so his office was contacted but he declined to join both the bench and the committee, constituted under the Supreme Court (Practice and Procedure) amendment Ordinance 2024.
“Therefore, I had no option and decided that next senior member Justice Naeem Akhtar Afghan be included in the bench hearing the review petition,” he said, adding that nothing happens behind closed doors now in the Supreme Court anymore.
The SCBA counsel said that there was a Presidential Reference filed in the apex court on March 21, 2022, seeking court’s opinion on Article 63-A of the Constitution as well as applications filed under Article 184(3) of the Constitution, adding that the SCBA petition was also filed under Article 184(3) of the Constitution. “But how can two jurisdictions be joined together and whether law permits it,” the CJP questioned Shaukat. Justice Isa observed that the court could give only its opinion of the Presidential Reference, but not the decision. “How decision can be given by joining both the jurisdictions,” he questioned.
Shahzad Shaukat replied that there was a judgement of the apex court where the issue had been settled. The CJP then asked the counsel as to whether the judgement under review had given its reasons for clubbing both the jurisdictions, adding that the court can only answer the questions asked in the Presidential Reference. He observed that the president could not be tried for contempt if the opinion on the reference was not followed.
“I am surprised that two jurisdictions were mixed up,” the CJP remarked, and asked the counsel as to who the president was at that time who sent the reference. Shaukat replied that Dr Arif Alvi was the president. The CJP said that the government of the time was also the petitioner in the case.
The SCBA counsel said that in the Presidential Reference, four questions were put before the court, seeking its opinion on the aspect of cheating under Article 63-A of the Constitution.
On the Presidential Reference, the court had declared that Article 63A could not be seen separately and holding that political parties were important for democracy, the counsel submitted, adding that the court on the reference had also declared deviation from party policy is a cancer for political parties.
This prompted the chief justice to ask as to whether the opinion of the court was an answer to question, asked by the president in the reference. The counsel replied in negative.
Shaukat submitted that the court in the Presidential Reference had declared that if any member of the party cast his vote on any issue in the parliament in favour other political party, that vote of dissident member would not be counted, adding that a question was related to the voice of conscience of a member also. He contended that an attempt was made in the judgement to rewrite the Constitution.
The chief justice questioned as to whether the judgement had also touched the aspect of de-seating of the dissident member. At this, Additional Attorney General (AAG) Aamir Rehman came to rostrum and submitted that nothing regarding de-seating of dissident member had been mentioned except not counting of vote of that member. “Tell us whether you are opposing the majority or minority opinion given in the Presidential Reference,” the CJP asked.
Shaukat replied that they were raising objections over the majority judgement. The CJP asked what the objection was to the minority decision. “We are objecting to the majority decision,” the counsel replied.
Justice Isa then asked the SCBA counsel as to where it was written in the judgement on the Presidential Reference that if the votes of dissidents were not counted, they would be disqualified?
“The judgement had left this issue to the party head,” the CJP said and questioned as to if the party head did not send a declaration to the National Assembly Speaker about the disqualification of its dissident member then what would be the situation.
“The matter then will come to an end,” the counsel replied.
As per law, the party head may proceed against his member by informing the Speaker and Senate chairman for taking action against its member, and both the heads of the Houses then inform the Election Commission of Pakistan (ECP), and the electoral body then may issue notice in 30 days and de-seat the said member, the CJP observed.
The chief justice asked as to whether the judgement had mentioned that the member would be disqualified immediately for casting his vote and not being counted as well.
The AAG told the court that nothing of that sort was mentioned in the judgement.
The CJP observed that the prime minister could not be removed from his office during the no-confidence move if the vote casted on the occasion was not counted, meaning that Article 95 of the Constitution got ineffective.
“Whether the judgement on Presidential Reference has touched Article 95 of the Constitution,” the CJP asked, adding that what would happen when a member of any party disliked the party head and was in favour of removing him.
Justice Mandokhail, another member of the bench, recalled that in Balochistan, members of a party had brought no-confidence motion against their own chief minister. “It is very difficult to decide the matter of one’s conscience,” the CJP remarked and questioned as to whether the judgement affected Articles 95 and 163. “Isn’t similar to convert the parliamentary system into presidential form of government,” he questioned.
The SCBA counsel submitted that the judgement did not find any example where defection was made on the voice of conscience and read out the relevant para of the judgement to the court. The CJP then questioned as to whether the people changing political parties could be considered men of conscience, or not. “Whether a judge dissenting with a judgement will be also be deemed having a conscience or not,” the CJP further questioned, adding as to who are we to call someone with a conscience or not.
The counsel questioned as to what would happen if a party head and leader of the parliamentary party issue separate instructions and whether it can be determined as to who would be considered as a man of conscience for obeying the party instructions. At this, the chief justice observed that the verdict of Justice Syed Mansoor Ali Shah on Article 62 (1) (f) had clarified as to which clauses of disqualification are automatically enforced and which are not.
The CJP asked the SCBA counsel as to what the US Constitution says about defection to which the counsel replied that there members of parliament are free to cast their votes and there is no punishment in this regard. “But the judgement on Presidential Reference had cited judgements of the US Supreme Court,” the CJP told the counsel.
Justice Isa asked the counsel to point out error in the judgement to which Shaukat replied that it was like rewriting of the Constitution, hence it should be set aside. The chief justice observed that the verdict not only talked about no counting of votes but also said that voting was mandatory if the party says so.
Shaukat, while giving background on the matter, informed the court that the petition for review was filed in 2022 by the SCBA. The CJP asked as to why the SCBA under the leadership of former SCBA president Abid Zuberi, did not withdraw the petition and both the SCBA groups retained their stance.
The counsel replied that the review plea was purely a constitutional issue, adding that after the incident, there was a request for lifelong disqualification of defecting members.
He submitted that the-then prime minister had given a call for a protest rally, adding that Sindh House was attacked and an impression was given that the defectors were stationed there.
Meanwhile, Barrister Ali Zafar said that he was representing the PTI founder Imran Khan, adding that he had not yet received the notice in the case, adding that his client was in jail and he would seek his instructions. “But it’s a constitutional matter and doesn’t need any instructions,” the CJP told Ali Zafar and questioned as to whether his client would tell him not to obey the Constitution.
Zafar said that the incumbent president had not filed the review petition on the judgement given on the Presidential Reference. The chief justice, however, told Zafar as to if the former president wanted to assist the court, adding that he would be welcomed. To a court query, Ali Zafar replied that he was opposing the review petition.
Similarly, Farooq H Naek, representing PPP, submitted that nothing was mentioned in the Constitution about not counting the votes, adding that if a vote was not counted, it meant that nothing wrong had been done. Naek contended that defection clause would apply only when the vote is counted.
Meanwhile, the court held that other counsels would be heard in detail and asked them to assist the court as to whether two jurisdictions like Presidential Reference as well as petitions filed under Article 184(3) of the Constitution could be clubbed besides enlighten the court about the situation in the United Kingdom which is the mother of Parliamentary democracy.
Later, the court adjourned the hearing until today (Wednesday) at 11:30am.