In major relief to govt, SC strikes down 2022 ruling on defection clause under Article 63-A

The Supreme Court on Thursday unanimously accepted 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 votes cast contrary to the parliamentary party lines in four instances outlined in Article 63-A should not be counted. Today’s ruling means that in any future legislation, the ballots of lawmakers who vote against party policy will be counted.

These four instances are the election of prime minister and chief minister; a vote of confidence or no-confidence; a Constitution amendment bill; and a money bill.

Today’s verdict, pronounced by Chief Justice of Pakistan (CJP) Qazi Faez Isa, could potentially provide major relief to the government in its attempts to garner the required support to make a set of amendments to the Constitution, multiple of which pertain to the judiciary.

The 2022 response to the presidential reference filed by then-president Arif Alvi was a 3-2 split decision, with then-CJP Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar being the majority verdict authors.

Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail were the dissenting judges, who had said that any further interpretation of Article 63-A would amount to “rewriting or reading into the Constitution”. The Supreme Court Bar Association (SCBA) — the petitioner in the case — had also contended the same.

A five-member bench — headed by CJP Isa and also including Justices Mandokhail, Miankhel, Naeem Akhtar Afghan, and Aminuddin Khan — resumed hearing today the review plea filed by SCBA in June 2022.

Justice Afghan had been included after Justice 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 due to reservations on a recent ordinance pertaining to bench formation.

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 the 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.

Announcing that SCBA’s appeal was being accepted unanimously, Justice Isa said the detailed verdict would be issued later.

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 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.

At Zafar stating that Imran had termed the bench as “unlawful”, the CJP asked him why he was repeatedly mentioning the PTI founder and told him to proceed ahead with his arguments.

“If it is not a judgment but an opinion on the presidential reference, then how is it being implemented?” Justice Mandokhail asked. “Did the president say that this opinion has been given so oust a government?”

The chief justice then asked Zafar if he recalled what former senator Mir Hasil Khan Bizenjo had said about a Senate election. “Cameras were fixed in an institution such as the Senate,” the CJP said, asking Zafar why he was “feeling perplexed by a single verdict”.

“You should present your arguments; perhaps we can even reject this review petition,” the top judge said.

Zafar then began presenting his arguments in the capacity of a legal assistant for the court. Zafar said the president at the time had sought an opinion regarding Article 63-A and thus a review appeal could not be accepted against it.

He said only the president himself could have approached if further clarification was needed to which the CJP pointed out that the PTI had also submitted a petition in the case.

“We had asked for life disqualification for floor crossing,” Zafar said, adding that the court had said that politicians could legislate on the issue regarding this.

CJP Isa questioned whether the majority of the judges in the 2022 verdict had referred to it as an opinion or order of the court to which Zafar said the present court had to decide that issue.

To this CJP Isa asked whether Zafar supported the appeal to the extent of deciding whether the word “opinion” should be used instead of decision. Justice Mandokhail also said here that he and Justice Miankhel were part of the 2022 bench as well and yet no one protested against their inclusion.

Zafar responded here that the disagreement was on the bench’s formation and not on anyone personally.

Later on in the proceedings, the CJP questioned who a judge was to say anything about the defection of a lawmaker, adding that it was the right of the party chief to declare someone a defector or not.

“Members of the assembly or political parties are not subordinate to any judge or chief justice,” CJP Isa said, adding that parties were subordinate to their leaders.

Justice Aminuddin asked who elected the leader of a parliamentary party to which Zafar said the parliamentarians did so.

To this, Justice Mandokhail said that parliamentarians had the right to vote and how could it be said to belong to a political party. Zafar responded that a parliamentary party was formed for precisely this reason.

CJP Isa questioned if it would be democratic for a judge to use the right of a party leader, saying that judges were not elected.

Zafar pointed out that the 2022 verdict had referred to horse trading as a “cancer” to which the CJP said: “These are the wrong words used.”

The top judge said that a judge could only determine whether something was constitutional and legal or not.

The chief justice said that the 2022 verdict had a margin of majority of only one judge. He questioned whether a single judge’s opinion could prevail over all of parliament.

To suggestions from Zafar to the judges to settle their matters, the CJP said: “There is no fight among the judges. It is not the case that the institution is split.”

PPP’s counsel Senator Farooq H. Naek then came on the rostrum and delivered his arguments in favour of floor crossing and how it was allowed in the UK, US and Canada.

He said there was no law anywhere in the world that the vote cast by a defector would not be counted.

The additional attorney general opposed sending the matter to the president.

CJP Isa questioned the need for an explanation when Article 63-A was already clear.

The court subsequently unanimously accepted the appeal against its 2022 verdict and said the detailed verdict would be issued later.