SC annuls its verdict on Article 63(A) interpretation: Way cleared for constitutional amendments

ISLAMABAD: The Supreme Court (SC), setting aside its judgment delivered in 2022 on the interpretation of Article 63(A) of the Constitution, barring lawmakers from casting their votes in parliament against party directions, has cleared the way for the ruling alliance to get the much-talked-about constitutional amendments on judicial reforms passed.

A five-member larger bench, headed by Chief Justice Qazi Faez Isa, accepted the review petition of Supreme Court Bar Association (SCBA) against the judgment delivered in 2022 on the presidential reference, seeking the opinion of the court on Article 63(A) of the Constitution. Other members of the bench were Justice Aminuddin Khan, Justice Jamal Khan Mandokhel, Justice Naeem Akhtar Afghan and Justice Mazhar Alam Khan Miankhel.

The court unanimously accepted the SCBA review petition and annulled its earlier verdict on the defection clause of Article 63(A) of the Constitution.

For reasons to be recorded later on, the review petition filed by the Supreme Court Bar Association and the judgment under the review, is set aside, the court announced a short order.

During the previous government of Pakistan Tehreek-e-Insaf (PTI) in 2022, President Dr Arif Alvi had sent a reference under Article 186 of the Constitution, seeking the court’s opinion on the defection clause of Article 63(A) of the Constitution.

On May 17, 2022, a five-member larger bench of the apex court, headed by then chief justice Umar Ata Bandial, by a majority 3-2, had restrained the lawmakers to cast their votes in parliament against their parties’ directions. The court had held that the votes cast by the dissident members of parties would not be counted. Other members of the bench were Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Jamal Khan Mandokhel and Justice Mazhar Alam Khan Miankhel.

Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar were in the majority, while Justice Jamal Khan Mandokhel and Justice Mazhar Alam Khan Miankhel had dissented with the majority judgment.

Later on, the SCBA had filed a review petition against the judgment with the contention that dissident members should only be de-seated, but their votes should be counted as per the Constitution of Pakistan.

On Thursday, during the course of hearing, Barrister Ali Zafar, counsel for Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan, boycotted the court proceedings after the court declined to hear Imran Khan on video-link. He told the court he had held a meeting with Imran Khan in Adiala jail but their meeting was not held in isolation, adding that policemen were also there. He contended that it was the right of every client to have a meeting with his counsel in isolation, but nothing of that sort happened in jail.

Barrister Ali Zafar informed the court that Imran Khan wanted to address the court himself, adding that the PTI founder wanted to make submissions in the court through video-link. The chief justice, however, instructed him to go ahead and start arguments.

Ali Zafar insisted that first his client Imran Khan should make his submissions in the court, then he would give arguments. The CJP told him that he was a senior lawyer, and he knew how the court proceedings work. “But my client has some objections to the bench; if Imran Khan is not allowed to appear on video-link, then he has asked for placing some things before the court,” Ali Zafar submitted, adding that he had to take instructions from his client.

The CJP told Ali Zafar that he was not only a counsel for his client but also an officer of the court. Justice Jamal Mandokhel observed that they had also been lawyers and they did not believe in leaving everything on their client, but only what was according to law.

Ali Zafar replied that if Imran Khan was not allowed, then he would not appear, adding that the government wanted to bring some amendments. “You are talking about politics, so that it will be headlined tomorrow,” the CJP told Ali Zafar. Zafar replied that even today there were headlines that the constitutional amendment was a must before October 25. “We are not aware of that,” the CJP told Zafar. But Ali Zafar contended that the government was bringing the constitutional amendment and there was an impression that the court would allow horse trading.

At this, the chief justice told the counsel that they could charge him with contempt of court on this statement. He remarked that the counsel the other day adopted one method and today came with another method. “We respect you and you should also respect us, but you are giving a very heavy statement by saying horse trading,” the CJP told Ali Zafar, adding that what was horse trading and if they would tell the counsel, he would be embarrassed.

CJP Qazi Faez Isa remarked that there was no fight among the judges, adding that it was not that the institution was broken. He asked the counsel for PTI founder to sit down with all political parties and settle their issues.

Ali Zafar then concluded his arguments and told the court that whatever conversation he had after 11:30am was as the counsel for the PTI founder. “Now, I am not a part of the proceedings of the case,” Ali Zafar told the court. The CJP said he (Zafar) was talking completely against democracy, adding that it was history that when martial laws were imposed, everyone became a rubber stamp and people joined the military regimes.

Ali Zafar, however, submitted that the decision of Article 63(A) stopped horse trading, on which the chief justice asked him to stop making fun of courts. Justice Jamal Mandokhel said the court had given its opinion on 63(A), but there was no decision. Ali Zafar contended that if the chief justice decided the case, there would be a conflict of interest. The CJP said, “We will not listen to what you are saying and will not make it part of the record.”

The chief justice then told Ali Zafar that the court could appoint him as an amicus curie (friend of court). Ali Zafar accepted the court offer and, while assisting the court, submitted that “the PTI founder says that the bench is not legal, so there is no point in going ahead”.

He submitted that the president had asked for an opinion on Article 63(A), a revision could not be filed against this opinion, adding that only the president of Pakistan could have approached if he needed further clarification.

The CJP, however, reminded Ali Zafar that he had also filed an application in the instant case. Zafar replied that in that application, they had asked for lifetime disqualification on floor crossing. The court, however, observed that the counsel was also a senator, so he could legislate it in parliament.

The CJP inquired whether the majority judges, who gave the decision on Article 63(A), wrote the word opinion or used the word judgment. Barrister Ali Zafar replied that it was for the court to decide whether it was an opinion or a decision.

Justice Jamal Mandokhel told Ali Zafar that he and Justice Mazhar Alam Khan Miankhel were also a part of the earlier bench but no objection was raised against both of them. “My objection is on the composition of the bench and not on anyone’s personality,” Ali Zafar replied.

Additional Attorney General (AAG) Aamir Rehman told the court that a law was made in New Guinea not to count the vote of a dissident member but the court had set aside the law.

The CJP observed that no law was available in a democratic country on not counting of votes of lawmakers. “I hope one day we will become a mature democracy,” the CJP remarked.

Justice Jamal Mandokhel asked Peoples Party lawyer Farooq H. Naek whether the president said he agreed with the majority opinion of the Supreme Court or with the minority opinion. Naek replied that nothing had come on record from the president that he agreed with whom and with whom he did not.

Meanwhile, the AAG opposed sending the matter to the president and said the constitutional petitions had also been dealt with the reference; therefore, the matter of dealing with the constitutional petitions could not be sent to the president.

The CJP asked if a member did not vote, he might also be disqualified; maybe the head of party might accept the reason for member’s non-arrival. He observed that Article 63(A) is clear; so what is the need for its interpretation by the Supreme Court, adding that appeals of dissident lawmakers also come to court and if the court decision itself leads to disqualification, the appeal would become infructuous.

Farooq H. Naik submitted that the Supreme Court had declared that the instructions of parliamentary party would be considered in written form. He submitted that according to the Hasba Bill case, it was necessary to restrict the opinion on one who asked for the opinion on the reference. He submitted that in the United Kingdom, floor crossing was allowed and being considered it as personal freedom. Similarly, he said same practice was being carried out in the US and Canada.

Naek submitted that in India, an MP could be disqualified on defection, but there was no law and rule available there that prohibited the counting of vote.

Separately, Jamiat Ulema-e-Islam Pakistan (JUIP) chief Maulana Fazlur Rehman said on Thursday the nation and political parties should keep all internal confrontation and political differences aside to forge solidarity with guests coming to attend the SCO Summit in Islamabad.

For this purpose, he said the government should defer the exercise of constitutional amendment till the conclusion of SCO. He also called upon the opposition to call off its protest so that no negative message goes to guests during their presence in the country and the whole nation should be seen standing together.

He recalled that the Council of Islamic Ideology (CII) was established in 1973 and as per the Constitution, it is incumbent upon the parliament to carry out legislation on its recommendation within seven years. But, he regretted that not even a single recommendation of CII had been given any consideration.

Moreover, he said it took nine months to develop a consensus on the 18th Amendment, but the incumbent government wanted to pass the new constitutional amendment within 24 hours. “They want amendment in the Constitution within hours to serve their interests,” he said adding that no such amendment in the Constitution was acceptable to his party in a hurry.

He told newsmen that his party accepted Supreme Court’s decision with regard to Article 63(A), but there should be no match-fixing and the verdict should not open the way for sale and purchase [of parliamentarians].

Meanwhile, PMLN Parliamentary Leader and Chairman Senate Committee on Foreign Affairs Irfan Siddiqui said on Thursday the SC decision on review petition of Article 63(A) has rectified a grave mistake. “It (the decision) has provided relief to the Constitution, not to the government or any party,” he said in an interview with a private TV channel.

Senator Siddiqui said that two years ago, Justices Bandial, Ejazul Ahsan and Munib Akhtar had “added an additional sentence to the Constitution”. He said the motive for rewriting the Constitution was to dissolve the government of a specific party in Punjab and pave the way for forming a government for another specific party. “The sole purpose was to replace Hamza Shehbaz with Chaudhry Parvez Elahi as the chief minister,” the senator said.

Responding to a question, Senator Irfan Siddiqui said, “The most terrifying form of tyranny is judicial tyranny.” He noted that administrative tyranny could not exceed limits and military dictator also stays within certain boundaries. However, judicial tyranny uses justice as a weapon and crosses all limits.

About the JUIF chief, he said “we first need Maulana Fazlur Rehman and then his votes”.

Addressing the misgivings revolving around legislation, he said everything was happening in broad daylight, with media discussions and political parties negotiating.

He added that Maulana Fazlur Rehman would soon reach a decision, and a parliamentary session would be convened in a week or ten days.

The senator said creating chaos in the country during the Shanghai Cooperation Organisation meeting aligns with PTI’s role, they did the same in 2014 and are preparing for it again today. “PTI’s mindset of May 9 hasn’t changed,” he said.

Giving his reaction on the SC decision, PTI Secretary General Salman Akram Raja said, “Today is a dark day in the history of Pakistan”. He said the decision had come against the Constitution of Pakistan and people had rejected it.

While speaking to a news conference here, Raja said Pakistan is on a fundamental point, it is a point for the people to speak and express their views. “Today’s decision is also a violation of Article 8; if these amendments are made after today, everything that is happening in the country will become constitutional. After this amendment, people will be picked up and put in jail and they will not be cared about for years,” he claimed.

He cautioned that the direction in which this state was going today was a worrisome situation. In the name of national security, people would be picked up in this country from today. “This decision of today will pave the way for those who bring amendments. Today is a dark hour in Pakistan. Someone will have to suffer,” he said.

He said the rulers need votes for the amendment; this amendment is to change the fifty years old law. “Constitutional rights are supreme, whereas this amendment says that any fundamental right can be taken away, phone can be tapped for national security,” he noted. He said that if the constitutional amendment goes through, then everyone will have to face it. After the amendment, whoever will demand his right will have to suffer.

Salman Akram Raja said, “Courts provide us with relief and protection. Even in the case of police, the court will not be able to do anything.” He added that if the military court takes notice or takes any action, the high court will not be able to do anything.

Peshawar Bureau adds: Adviser to KP Chief Minister on Information and Public Relations, Barrister Muhammad Ali Saif, feared horse-trading during voting for constitutional amendments.

In a handout, he expressed grave concern over the possibility of horse trading during the voting on constitutional amendments which, he believed, posed a threat to democracy.

Referring to the court decision on Article 63(A), he warned that it had paved the way for Zardari and Sharif families to win over the loyalties of members of parliament. “The decision benefits the political mafia while undermining the very fabric of our democracy,” he stated.

Barrister Saif, who is also the spokesman for the KP government, said justice suffered when courts succumbed to political expediency. He said PTI founder Imran Khan had effectively curtailed such horse-trading, but the current situation was alarming. “Today’s ruling on Article 63(A) has taken many by surprise and will remain a source of embarrassment for the judicial system,” Barrister Saif said and called upon the legal community to support the PTI in thwarting these attempts which go against the spirit of democracy.