Article 63-A review: Ali Zafar appointed as amicus curiae after ‘boycotting’ hearing as Imran’s counsel

The Supreme Court on Thursday appointed Senator Ali Zafar as amicus curiae to assist the court in a review petition against its 2022 verdict related to the defection clause under Article 63-A of the Constitution.

The decision came after Zafar, who is PTI founder Imran Khan’s counsel, announced that he was boycotting the proceedings on his client’s objections over the bench.

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.

A five-member bench — headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and also including Justices Naeem Akhtar Afghan, Aminuddin Khan, Jamal Khan Mandokhail, and Mazhar Alam Khan Miankhel — resumed hearing today the review plea filed by the Supreme Court Bar Association (SCBA) in June 2022.

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.

In a previous hearing, CJP Isa had poked holes in the opinion rendered by the previous larger bench. On Wednesday, the court dismissed objections raised by Zafar, Imran’s counsel, on the bench’s constitution in light of a recent amendment ordinance.

During today’s hearing, Zafar said he did not wish to be part of the case if his client was not being allowed to appear via video link. However, CJP Isa then asked him to assist the court, which he agreed to.

The hearing

At the outset of the hearing, CJP Isa inquired Zafar if he was able to meet Imran as per the court’s directives, to which the lawyer replied in the affirmative.

“Yes, I met him yesterday but it was not in private. There were jail authorities present during the meeting,” Zafar lamented. He stated that Imran wanted to speak before the court himself and present his arguments via video link.

“Okay, let’s move forward. You may present your arguments,” the chief justice said, addressing Zafar, who replied that Imran be allowed to put forward his contentions first.

“Ali Zafar sahib, you are a senior lawyer and a senator as well. You know how court proceedings work,” Justice Isa noted.

The PTI senator then stated that Imran had objections on the bench. “If the permission for the PTI founder to appear via video link is not granted, then he has told me to state a few things before the court,” Zafar said.

The lawyer insisted that he has to work according to the directions of his client, at which the top judge remarked, “You are not only your client’s counsel but also an officer of the court.”

Justice Mandokhail also recalled: “We have also been lawyers [but] we did not listen to every directive of our client. We only followed what was as per the law.”

Here, CJP Isa observed that five minutes had been “wasted” over the issue, at which Zafar said he would be done with his argument and out of the courtroom in seven minutes. “Very good, we also want the same,” the CJP quipped.

Zafar then pointed out that the government wanted to bring some amendments, referring to the proposed constitutional package for which the ruling coalition is trying to garner the required support after a failed first attempt to introduce its draft in the parliament.

“If you have to talk about this, then start from the beginning,” Justice Mandokhail said. “You are not letting me say what I want to,” the lawyer replied, at which CJP Isa remarked that Zafar was speaking about politics “so that there could be headlines tomorrow” about it.

Continuing with his arguments, Zafar said the proposed amendments had given an “impression that horse-trading was being allowed”, reiterating Imran’s earlier statements.

At this, the top judge said the court could initiate contempt of court proceedings against Zafar for saying so. “We respect you, you should respect us as well. By claiming horse-trading, you are making a huge statement,” CJP Isa stressed.

“What is horse-trading? You would be embarrassed if we told you,” he added.

Imran’s counsel argued that the court’s ruling on Article 63-A “prevented horse-trading”, at which Justice Mandokhail clarified that the apex court had “given an opinion, not a judgment”.

Zafar then announced boycotting the proceedings: “PTI founder has said the constitution of the bench is not right. [Therefore,] we will not be part of this case.”

He went on to say that if the CJP was part of the bench deciding on the review petition, it would be a “conflict of interest”. “Whatever you are saying, we will neither listen to it nor make it part of the case record,” Justice Isa observed.

He then asked Zafar if he had any objection if the court appointed him as an amicus curiae, to which the lawyer replied he had no issues. Subsequently, Zafar was told to assist the court as an amicus curiae, rather than contesting the case as Imran’s lawyer.

More to follow