Article 63-A review: SC dismisses objection raised over bench by Imran’s counsel

The Supreme Court on Wednesday dismissed an objection raised by PTI founder Imran Khan’s counsel over the bench hearing a review petition against its 2022 verdict related to the defection clause under Article 63-A of the Constitution.

Through its May 17, 2022 verdict, the SC had declared that the vote cast contrary to the parliamentary party lines under Article 63-A should not be counted.

Article 63-A aims to restrict the voting powers of lawmakers by making them bound to the decision of the “Party Head” — whoever is formally declared the head of the party. The penalty for violating Article 63-A is disqualification from the National Assembly and the vacation of the defecting lawmaker’s seat, the Constitution states.

The review plea, filed by the Supreme Court Bar Association (SCBA), was on Tuesday taken up by a five-member bench — headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and also including Justices Justice Naeem Akhtar Afghan, Aminuddin Khan, Jamal Khan Mandokhail, and Mazhar Alam Khan Miankhel.

Justice Afghan had been included after Justice Munib Akhtar — part of the bench that originally heard the case — and senior puisne judge Justice Syed Mansoor Ali Shah successively chose not to sit on the larger bench.

During the hearing on Tuesday, SCBA President Shahzad Shaukat presented his arguments, with CJP Isa poking holes in the opinion rendered by the previous larger bench on the presidential reference filed by then-president Arif Alvi.

Today, Senator Ali Zafar appeared before the court as Imran’s lawyer while Shaukat and Pakistan Bar Council Vice Chairman Farooq H. Naek were also present.

The hearing

At the outset of the hearing, Zafar said he would present “solid” arguments and seek more time to present them, saying he needed to consult the former prime minister on the case.

The counsel sought the court’s permission to meet with Imran to discuss the case with him, at which CJP Isa directed him to begin his arguments.

“If you had to consult with him, then you should’ve told us yesterday; we could’ve issued an order [in that regard],” the top judge said.

Here, Mustafeen Kazmi, who said he was a PTI lawyer, came to the rostrum and was told to go back. Following a harsh exchange of words with CJP Isa, Kazmi said the five-member larger bench was unconstitutional, as well as the inclusion of two judges in it.

“There are 500 lawyers standing outside [the SC]. Let’s see how a decision against us would be made,” the lawyer said, at which the chief justice ordered that the man be escorted out of the courtroom.

The development led to CJP Isa inquiring Zafar about the lawyer’s behaviour and censuring him.

“What is happening Ali Zafar sahib? You come and insult us? We will strictly not tolerate this,” the chief justice asserted.

Distancing himself from Mustafeen and attempting to calm the air, the PTI senator replied that he was presenting his arguments very respectfully and that Justice Isa was also listening to him with patience.

Zafar then continued with his arguments, saying that it was necessary for the respondents to be issued notices in the case.

“This manner is not right; the bench is not lawful. It is not even right according to the amendment ordinance,” Zafar argued, objecting to the bench formation.

“Now you are threatening us,” the top judge observed.

“Do you want to run the institutions in this manner? Every day it is said that there are two groups of judges,” Justice Mandokhail chimed in.

At one point during the hearing, Zafar contended that according to the Supreme Court Practice and Procedure Act, benches were to be formed as per the majority view of a three-member committee of judges.

“There is no scope in the law that two members of the committee form benches,” Imran’s lawyer asserted.

Referring to a recent ordinance promulgated, the top judge said: “The amendment ordinance has not been challenged before us (SC).”

Zafar pointed out that Justice Shah’s letter, wherein he had expressed displeasure with the ordinance, called for a full court to deliberate the matter. Later during the hearing, CJP Isa said: “I have no issues with summoning a full court.”

“Now, there would neither be authoritarianism in the country nor in institutions,” the top judge observed.

At one point, Zafar urged the court to first decide whether the bench hearing the case was “lawful”, adding that he could present his arguments only once it had been decided.

Subsequently, the court dismissed the objection raised by Imran’s counsel. “We all have unanimously decided to dismiss your objection on the bench,” the CJP said.

Zafar then requested the court again that if the court had “decided to not include the verdict’s author” — Justice Akhtar — in the bench, then he be allowed to meet his client.

The court accepted the lawyer’s plea, ordering the additional attorney general to make arrangements for Zafar’s meeting with Imran to discuss the case.

The hearing was then adjourned until 11:30am tomorrow (Thursday).