Govt, PPP endorse SCBA petition challenging Supreme Court’s ruling on Article 63(A)

ISLAMABAD: In a major development in the Article 63(A) review case, the federal government and the Pakistan Peoples Party (PPP) have backed the Supreme Court Bar Association's (SCBA) petition challenging the apex court's May 2022 ruling on the defection clause.

The court, back then, had decided that the dissident members of a parliamentary party could not cast votes against their party's directives.

The development comes as a SC larger bench, led by Chief Justice Qazi Faez Isa on Tuesday heard the review petition. The newly formed bench comprises Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Mazhar Alam Khan Miankhel and Justice Naeem Akhtar Afghan.

The existing bench was constituted after Justice Munib Akhtar, on Monday, expressed unavailability from being part of the bench — the reasons for which the latter communicated to the apex court's registrar in multiple letters.

A day earlier, CJP Isa had adjourned the hearing due to Justice Munib's absence and said that Justice Munib would be requested to rejoin the bench, which otherwise, would be reconstituted.

At the onset of the hearing today, the CJP addressed the bench formation issue and revealed that Justice Munib retained his stance regarding his presence on the bench.

On the issue of the judges' committee, the chief justice said that he recommended including Justice Mansoor Ali Shah and that the puisne judge's office was office contacted in this regard.

However, owing to Justice Mansoor's refusal, the CJP said that they were left with no option but to include Justice Afghan in the bench.

Appearing before the court today, SCBA President Shahzad Shaukat objected to the 2022 verdict saying that there was a presidential reference and petitions under Article 184(3) of the Constitution.

"How can the judgment be given by combining both? Only an opinion can be given on a presidential reference and not a decision," responded CJP Isa.

Furthermore, the senior lawyer also argued that the apex court's 2022 verdict was an attempt to re-write the constitution.

To this, the chief justice remarked: "When the constitution is clear, how can [one] add something to it."

In response to the top judge's question whether the said judgement provisioned immediate disqualification of a lawmaker if he votes against party lines, the additional attorney general replied in the negative.

"No, nothing like that has been said in the judgement," the AAGP noted.

When asked who opposed and supported the SCBA's review plea, Pakistan Thereek-e-Insaf's (PTI) Barrister Ali Zafar said that he was against the petition, whereas the federal government and the PPP said that they supported the review request.

PPP's lawyer Farooq H Naek said: "The Constitution does not have any provision against counting of [lawmakers'] vote[s]."

After hearing the arguments, the chief justice said the court would hear the remaining lawyers tomorrow and adjourned the hearing till Wednesday.

Justice Munib's letters

Elaborating on the reasons behind his unavailability from yesterday's hearing, Justice Munib has said that he did not recuse from the bench, saying he cannot be a part of a bench that was constituted by the Practice and Procedure Committee — the three-member judges' committee of the apex court which decides on the formation of the SC benches and cases related to human rights.

It is to be noted that following the promulgation of the Supreme Court (Practice and Procedure) Amendment Ordinance 2024, Justice Munib was replaced with Justice Amin-Ud-Din Khan by CJP Isa.

The judge, in his letter, noted that the "matter of fixing a bench for the CRP appeared suddenly on the committee's agenda at its 17th meeting held on July 18, it seems for the first time even though the committee has been meeting since before July 17."

"Even though no bench was constituted, the Chief Justice (in minority) had proposed a five-member bench, to be headed by the senior puisne Judge. That proposal has now been abandoned and the Chief Justice has himself assumed command of the CRP, for reasons that are not unknown," he wrote.

"I may also note that the bench now constituted includes Justice (R) Mazhar Alam Miankhel, who currently attends sittings of the Court as an ad hoc judge in terms of Article 182. The reasons why it was considered necessary to so request Justice Miankhel (and another retired Judge) are set out in the minutes of the meeting of the JCP held on 19.07.2024," the judge added.

Seeking his letter to be made part of the case, Justice Munib said that his unavailability from the bench should not be considered as a recusal and pointed out that Justice Mazhar's — who was part of the bench that gave the May 2022 ruling and had in fact dissented with majority judgement — inclusion in the five-member bench hearing the case that it was contrary to Article 182 of the Constitution.

This was followed by a second letter from the SC judge where he highlighted that four judges could not have sat and heard the matter that was listed before a five-member bench.

"I am at a loss to understand as to how the five-member Bench constituted in terms as set out in my earlier note sent to you today could be 'converted' into a four-member bench [....] I must nonetheless regretfully, though respectfully, record my protest as to what has been done," wrote the judge while referring to yesterday's hearing.

Defection clause issue

The issue at hand owes its origins to a reference filed by the Pakistan Tehreek-e-Insaf (PTI) government in the SC back in 2022 seeking the apex court's opinion on Article 63(A) to curbing the menace of defections, purification of the electoral process, and democratic accountability.

The court, via a 3-2 judgement, had then announced the verdict against defections and barred lawmakers from going against their party's policy lines when voting in the parliament.

Three judges — then-CJP Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Munib had voted in favour whereas Justice Mandokhail and Justice Mazhar disagreed with the verdict.

The SCBA filed a plea moving the apex court to take back its opinion on the verdict's paragraph about not counting the votes of dissidents by reviewing the interpretation made on May 17, 2022. It maintained that the dissidents should only be de-seated but their votes are supposed to be counted as per the Constitution of Pakistan.

"The apex court's opinion about not counting the dissident's votes is against the Constitution and equal to interference in it," the SCBA stated in the plea.

Why is Article 63(A) important?

Article 63(A) of the Constitution of Pakistan deals with the defection of parliamentarians.

According to the article, a lawmaker can be disqualified on the grounds of defection if they vote or abstain from voting in the House contrary to any direction issued by the parliamentary party to which they belong.

However, this is restricted to three instances where they have to follow the party’s directions:

Election of the prime minister or chief minister;

Vote of confidence or a vote of no-confidence;

Money bill or a Constitution (amendment) bill.

Per the article, the head of the party is required to present a written declaration that the MNA concerned has defected.

However, prior to presenting the declaration, the head of the party will have to give the MNA concerned a chance to explain the reasons for defection.

Following that, the party chief will then forward the written declaration to the speaker, who would, in turn, hand it over to the chief election commissioner (CEC).

The CEC will have 30 days at their disposal to confirm the declaration. Once confirmed, the MNA concerned will no longer be a member of the House and their “seat shall become vacant".