Supreme Court overturns ruling on lawmakers' defection in parliament

ISLAMABAD: The Supreme Court on Thursday overturned its earlier ruling on the interpretation of Article 63(A) that barred lawmakers from going against their party's policy while voting in parliament.

Hearing the Supreme Court Bar Association's (SCBA) plea, the five-member bench led by Chief Justice of Pakistan (CJP) Qazi Faez Isa announced the unanimous verdict and approved the review petition saying that the detailed verdict will be issued later.

The case revolves around the apex court's previous ruling, which stated that the votes of parliamentarians who deviated from their party's directives and policies were to be disregarded and not counted.

During the hearing today, Pakistan Tehreek-e-Insaf (PTI) lawyer Barrister Ali Zafar apprised the court that he met the PTI founder, however, the meeting didn't have the attorney-client privilege as it was also attended by police officers.

The lawyer further said that the incarcerated ex-prime minister has requested to appear before the court himself and that he wishes to raise certain arguments via virtual appearance.

Reiterating the party's earlier opposition to the bench, he said that the PTI founder has maintained that the five-member bench hearing the said case wasn't constituted properly so they won't be a part of the proceedings.

"If you announce a verdict then there would be a conflict of interest [....] the PTI founder said that the bench is not legal and so there is no point of moving forward," he remarked, adding that the PTI wanted to distance itself from the court proceedings."I will not appear before the court if the PTI founder is not given permission [to present his arguments]," he noted.

However, the lawyer's repeated mention of Khan didn't sit well with the CJP who said: "Why are you taking [Imran] Khan's name again and again, [you should] talk without taking [any] names."

Furthermore, the top judge also warned the counsel of contempt of court proceedings on his remarks regarding a perception that the court will allow horse-trading in light of the Constitutional amendments expected to be tabled by the government.

"We can hold you in contempt of court [for this statement]," said CJP Isa.

Moving on, the chief justice asked Barrister Zafar if he would be ready to act as amicus curiae to which the latter replied in the affirmative.

The court then appointed the lawyer as amicus curiae after SCBA President Shahzad Shaukat said that he didn't oppose the said notion after which the PTI lawyer continued his arguments before the court.

Addressing the PTI counsel, CJP Isa said all the political parties should sit together and settle their issues, clarifying that "there is no division among judges".

Justice Mandokhail asked Pakistan Peoples Party's Farooq H Naek if President Asif Ali Zardari agreed with the apex court’s majority verdict or not, the lawyer said: "Nothing has come on record from the president about whether whom he agrees or disagrees with.”

Upon the lawyer‘s reply, the top judge asked: “Should the court send the matter to the president to decide which opinion he agrees with?”

The Additional Attorney General, Amir Rehman, opposed sending the matter to the president.

“The constitutional petitions have also been wrapped up along with the reference. This matter, therefore, cannot be referred to the president.”

Rehman added that the apex court declared that the opinion on the reference would be binding on the state. “The state is bound by the opinion of the SC.”

Defection clause saga

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 then 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.

Ruling's political dynamics

The proceedings, which hold key significance due to prospective political repercussions in parliament, have not been without controversy related to Justice Munib Akhtar's "unavailability" from sitting in the five-member bench.

The case further garnered political weightage after the federal government and the PPP also announced to back the SCBA's review plea.

The said case holds key significance for the ruling coalition government which is eyeing constitutional amendments including the formation of a constitutional court as well as an extension in the judges' retirement ages.

However, as per reports, the government is short when it comes to the required numbers as it needs a two-thirds majority in both houses.

Although the government has been engaged in strenuous efforts to woo Jamiat Ulema-e-Islam-Fazl (JUI-F) Chief Maulana Fazlur Rehman to lend his support for the constitutional package, it seems that even if this happens the treasury benches will still be short of the required numbers.

And this is where the said case comes into play as if the apex court rules that the dissident lawmakers' votes can be counted, the government might attempt to "break away" some Pakistan Tehreek-e-Insaf (PTI) lawmakers to successfully make the prospective amendments to the Constitution.

However, under the current interpretation of Art 63 (A), as reflected in the 2022 ruling, the government will not be able to do so as the votes of the PTI lawmakers will not be counted if they go against the parliamentary party's directives.

What does Article 63(A) says?

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".