SC issues detailed judgment on Article 63(A) review petition

ISLAMABAD: The Supreme Court (SC) on Thursday issued a detailed judgment on the review petition against its verdict delivered in 2022 on the interpretation of Article 63(A) of the Constitution, debarring lawmakers from casting their votes in parliament against the party direction.

On October 3, a five-member larger SC bench, headed by Chief Justice Qazi Faez Isa, set aside the majority judgment delivered in 2022 on the interpretation of Article 63(A) of the Constitution, declaring it as against the clear language and mandate of the Constitution and also contrary to the decisions of larger benches of the apex court.

Other members of the bench included Justice Aminuddin Khan, Justice Jamal Khan Mandokhel, Justice Naeem Akhtar Afghan and Justice Mazhar Alam Khan Miankhel. The court unanimously accepted the review petition of SCBA and annulled its earlier verdict on the defection clause of Article 63(A) of the Constitution. On Thursday, the 23-page detailed judgment, authored by Chief Justice of Pakistan (CJP) Qazi Faez Isa, held that the majority’s judgment had opened the way to transform the leader of a political party into a dictator, simply because the party’s leader could never be challenged.

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 Chief Justice Umer Ata Bandial, by a majority of 3-2, restrained lawmakers from casting their votes in parliament against the party directions. The court had held that the votes cast by the dissident members would not be counted. Other members of the bench were Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Jamal Khan Mandokhel and Justice Mazhar Alam Khan Miankhel.

Chief Justice Umer Ata Bnadial, Justice Ijazul Ahsen and Justice Munib Akhtar were in the majority, while Justice Jamal Khan Mandokhel and Justice Mazhar Alam Khan Miankhel dissented with their judgment. Later, the Supreme Court Bar Association filed a review petition against the judgment with the contention that dissident members should only be de-seated, and their votes should be counted as per the Constitution of Pakistan.

The detailed judgment noted that the reference, which was filed by President Dr Arif Alvi on March 21, 2022, did not disclose that a resolution seeking the vote of no-confidence had been submitted in the National Assembly on March 8, 2022, against the then prime minister Imran Khan. The court held that the Constitution stipulates that the President is the “Head of State and shall represent the unity of the Republic” (clause (1) of Article 48). “Therefore, it is surprising that President Alvi entered into the political fray at a time when the then prime minister was facing a vote of no-confidence,” the court declared adding that what President Alvi titled to be ‘Questions of Law’ were not proper questions. The court held that unless any provision of the Constitution specifically empowers the president to act on his own volition, he must act on advice as provided by Article 48(1) of the Constitution, which states that, “In the exercise of his functions, the President shall act on and following the advice of the Cabinet or the Prime Minister”.

The detailed judgment noted that the president might only act “in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so” (clause (2) of Article 48). The court noted that the reference submitted to the court was under the signature of “Dr Arif Alvi, President, Islamic Republic of Pakistan”, adding that the reference did not attach, nor refer to, any decision/resolution of the cabinet nor the advice of the prime minister, authorising its filing. Given that the said two honourable judges had already directed that the reference should be entertained and that it be fixed for hearing in court, the Registrar’s office could not record any objection it may have had to its filing.

The court further noted that the majority’s judgment, which held that a member who votes contrary to the direction of the parliamentary party, the vote of such member is not to be counted, negated not only the express provisions of Article 63(A) but also the following provisions of the Constitution: (a) Article 91(7), whereunder a Prime Minister may be called upon to obtain a vote of confidence from the National Assembly, (b) Article 95, under which a resolution is submitted seeking a vote of no-confidence, (c) Article 130(7), where under a Chief Minister is called upon to obtain a vote of confidence from the Provincial Assembly and (d) Article 136, which requires voting on a resolution of no-confidence against a Chief Minister.

“These constitutional provisions were rendered redundant,” says the judgment adding that another consequence of the majority’s judgment would be that once a prime minister and chief ministers are elected, they can never then be removed either by their own party or by the majority membership of the concerned assembly.

The detailed judgment noted that nothing can be more undemocratic; the majority’s judgment has opened the way to transform the leader of a political party into a dictator, simply because the party’s leader can never be challenged.

“The judges in the majority, with great respect, had also not noted the particular language which was used in the Constitution,” says the judgment adding that in clause (4) of Article 63(A), the word cease is used and it is stated that a member ‘shall cease to be a member’ whereas the word disqualify is used in Article 63 ‘disqualifications for membership.’

“Ceasing to be a member (on account of defection) is not mentioned in Article 63, let alone that the defector is disqualified or suffers disqualification,” the detailed judgment noted adding that to state the obvious, cease means to stop, to come to an end or to forfeit whereas disqualification or disqualify means to render ineligible, to be unfit or to disentitle. The court held that the words and the language used in the Constitution, its placement and context was overlooked by the three judges.

Similarly, the detailed judgment noted that the majority’s judgment interestingly referred to decisions from a number of countries and forums, including from the United States of America, Canada, United Kingdom, India and the Privy Council. Foreign legal books and authors were also quoted. But this appears to have been done, without first ascertaining the law in the respective countries regarding defections, and the consequences thereof.

The detailed judgment held that senior lawyer Farooq H Naek, while assisting the court on the international position on defections and its consequences, submitted that voting, or abstaining to vote, contrary to the party or its leader’s direction does not result in automatic disqualification in any country of the world. “The learned AAG pointed out that an automatic disqualification law was enacted in Papua New Guinea, but its Supreme Court struck it down,” says the detailed judgment adding that in only a few countries of the world, including Pakistan, a member who votes or abstains from voting, contrary to the party’s direction, can be declared to have defected, and his seat, only after complying with the stated necessary preconditions, is vacated.

“The majority’s judgment substituted its wisdom with that of the makers of the Constitution, and adopted a course not followed anywhere in the world,” says the judgment.

The court held that what a particular judge considers to be right or wrong, or ethical or unethical, is neither the law nor the Constitution while law makers may transform moral precepts into law, however, the courts are concerned with what is lawful or unlawful.

“Parliament makes the law which the courts apply, and if there is any ambiguity in the law a judge interprets it, but this too must be done within the parameters of the law and as per the well settled rules of interpretation,” says the detailed judgment.

The court further held that the majority’s judgment also reflects a complete distaste for parliamentarians (in its paragraph 106) as it proclaims that in the history of Pakistan and its parliament only once did a parliamentarian come close to becoming a ‘conscientious objector who took the path of defection and deseating under Article 63(A).’ The court held that the expression of such contempt for politicians and parliamentarians is regrettable. “Let us not forget that Pakistan was achieved by politicians who had gathered under the banner of the All India Muslim League and its Quaid (leader) M A Jinnah, who strictly followed the constitutional path,” the court declared.

“Therefore, for all the aforesaid reasons, the majority’s short order and the majority’s judgment are set aside as they are against the clear language and mandate of the Constitution and are also contrary to the decisions of the larger Benches of this Court,” the detailed judgment concluded by holding that the conclusions arrived at by the judges who were in the minority are sustained.