SC rectifies 63A misstep, but timing raises questions

KARACHI: While there is agreement that the Supreme Court’s ruling on Article 63A rectifies a constitutional misinterpretation, the process by which it was achieved raises legal and procedural concerns. Legal experts see the decision as a positive step in correcting a misinterpretation of the constitution, stating that the previous ruling had distorted the intent of 63A by disregarding votes of defecting lawmakers.

Others, though, have expressed concerns about the manner in which the ruling was overturned, highlighting the issues surrounding the composition of the bench, including the absence of Justice Munib Akhtar and the inclusion of an ad-hoc judge.

On Thursday, the Supreme Court overturned its 2022 ruling on the interpretation of Article 63A of the constitution, which had prohibited lawmakers from voting against their party’s directives in parliament. The 2022 ruling, reached by a 3-2 judgment, was made in response to a reference filed by the PTI government. At the time, legal experts had criticized the judgment for having ‘rewritten the constitution’.

How do legal experts feel now that the 2022 controversial ruling has been overturned?

Speaking to Geo News after Thursday’s verdict, former president of the SCBA Ahsan Bhoon called the ruling “promising”, adding that the Supreme Court had “set things on the right track”.

For PILDAT President Ahmed Bilal Mehboob, the Supreme Court “has done well to remove a major distortion in our constitution which was introduced by the court by misinterpreting Article 63A of the constitution in 2022.” Mehboob tells The News that “Whether we like it or not, the text of Article 63A does not indicate that a defector’s vote will not be counted. The Supreme Court had truly rewritten this part of the constitution by its interpretation which altered the course of politics in Punjab in a big way.”

The repercussions of Thursday’s verdict could also be immediate, with Mehboob adding that Thursday’s interpretation “may have a profound impact on politics in the next few days and weeks. If there are some defectors, their vote may be counted in the expected constitutional amendment bill and today’s interpretation may improve the chances of the passage of the bill.”

As far as the Article 63A interpretation goes, lawyer Salaar Khan agrees that there was “a very strong case to be made that the original judgment was not the appropriate interpretation of the provision and that it read in language to the constitution that did not exist. Whether or not the constitutional provision is better or worse off with its inclusion is a separate matter altogether. The point, simply, is that it is not for a judge to add or delete such language from constitutional provisions.”

Barrister Rida Hosain too reminds that the 2022 judicial interpretation “effectively read in an additional punishment that a defecting vote will not be counted. This went beyond the domain of interpretation.”

Hosain says that the original 1973 constitution “contained a provision regarding votes of no-confidence which provided that: a parliamentarian’s vote in support of a vote of no-confidence would be ‘disregarded’ if ‘the majority of the members of that political party in the National Assembly has cast its votes against the passing of such resolution’. Where the framers of the constitution contemplated a discarding of the vote, this was expressly provided. The current constitutional scheme contains no such provision.”

That said, some of the legal experts are not too comfortable with the verdict.

Supreme Court advocate Basil Nabi Malik is clear that setting aside the earlier judgment on Article 63A “was needed”. However, he emphasizes that “the manner in which the judgment is set aside is just as important as the setting aside of the judgment itself.” Malik feels that the “controversies surrounding the constitution of the bench, Justice Munib Akhtar’s absence etc will all contribute to rendering the judgment controversial, while at the same time stripping it of across-the-board acceptability.”

Salaar Khan raises a few questions of his own: “Why the sudden interest in the case, after a delay of two years, and to the exclusion of matters that have been pending for even longer? Why the exclusion of Justice Munib Akhtar, the author judge, when he did not recuse himself from the bench?”

Salaar also wonders if it was necessary to include an ad-hoc judge when others were available and why the bench was constituted by a committee of only two judges, contrary to the text of the Practice and Procedure Act, even after it was amended. These questions, he says, will mean that “the resistance to the judgment in review will have less to do with the judgment itself” and more with the facilitation of the proposed constitutional amendment.

Hafiz Ehsaan Ahmad, advocate of the Supreme Court, explains that around the world an apex court can “only review whether laws or amendments comply with fundamental rights or constitutional structure; it cannot initiate or rewrite the constitution itself -- only parliament has the power to make formal changes to the constitution.”

Saying that the 2022 decision of the Supreme Court was “clearly against the mandate and jurisdiction granted under Article 175(2)”, Khokhar feels “it has been rightly corrected through [Thursday’s] unanimous judgment.”

And what about the criticism? Hafiz Khokhar says that no argument was presented in court to support the challenged judgment and that “instead, the focus was on the composition of the bench”. To that, he says that per legal experts “given the amendment made through the ordinance in the Practice and Procedure Act, the bench was properly and legally formed. Therefore, there was no deviation from the law, and the objection to the bench’s constitution was not valid.”

However, Barrister Hosain sees Justice Munib Akhtar’s removal from the bench as “troubling, and in my view, unlawful”. She explains: “Justice Akhtar made clear that he was not recusing from the bench, and there was no lawful justification for the case to proceed without him.”

She concludes that -- in her opinion -- “the only reasonable inference that can be drawn” from the fact that the 63A review has been heard at this moment is that it was done to “facilitate the constitutional amendment by the government parties”.

Barrister Ali Tahir echoes these concerns and points to what he says are reasons the judgment will be remembered for. For one, he says, “the member of the original bench that heard the review was not present, and the one member of the original bench was only an ‘ad-hoc’ judge who was already in the minority”. He adds that both the next two senior-most judges after the chief justice raised questions on the legality of the bench, while also pointing to the speed and timing of the verdict.