Article 63-A review: lawyers hail SC verdict, question its timing

The legal fraternity on Thursday largely welcomed the Supreme Court (SC) unanimously accepting a review petition against its 2022 verdict related to the defection clause under Article 63-A of the Constitution. However, it questioned its timing and the composition of the bench.

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 include the election of the prime minister and chief minister; a vote of confidence or no-confidence; a Constitution amendment bill; and a money bill.

The verdict, pronounced by Chief Justice of Pakistan (CJP) Qazi Faez Isa today, 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.

Legal experts say verdict ‘correct’ but cast doubt on timing

Speaking to Dawn.com, Barrister Asad Rahim Khan said that many lawyers disagreed with the original 2022 opinion.

“It was difficult to see how the plain text of the Constitution prohibited dissident legislators’ votes from being counted,” he said.

However, Rahim highlighted, that the “review petition was fixed just days after a constitutional amendment seeking to destroy the Supreme Court [failed to pass][12]”.

He further noted that the “review bench was formed [without Justice Munib Akhtar][7] despite this, the chief justice having expressly held that review petitions are always heard by the author of the original verdict”.

“And the bench itself was the gift of a [presidential ordinance][13], whereby the executive has tried its best to commandeer the judges,” he added.

Barrister Rahim also emphasised: “That this precisely coincides with opposition party members claiming they are being pressured to vote in favour of the new [Dogar Courts][14].

“It will be easier to pass major legislation as lawmakers’ votes will be counted regardless of party stance. This applies to all parties.”

‘Timing would cast shadow’

Lawyer Basil Nabi Malik hailed today’s decision as “the correct one” but at the same time, said the proceedings’ timing would cast shadows.

“It cannot be doubted that the judgment under review had gone much beyond its ambit in interpreting Article 63-A,” he asserted.

Malik recalled that many, including him, had contended that the original opinion “may have indeed transgressed the boundaries of interpretation into the realm of judicial law-making”.

“With that said, unfortunately, the timing and the hurried manner in which the said bench was constituted, as well as the decision rendered, shall cast shadows over the validity of the same,” he noted.

‘Sudden and unusual haste’

Lawyer Abdul Moiz Jaferii said that the 63-A decision was an “incorrect opinion” on the constitutional consequences of defection.

“I think it rendered the ability to express your dissatisfaction with your own parliamentary leader by way of voting against them in no confidence whilst being willing to suffer the consequences redundant,” he said.

He added that the timing of this review and its consequences are worth commenting on. “This verdict allows for members of parliament to vote against party lines on matters including constitutional amendments,” he said.

“Today’s decision paves the way for a constitutional amendment to be forced through; the drafts of which show a clear assault upon the independence of the judiciary.”

Jaferii added that the hearings were conducted with a “sudden and unusual haste”, with written filings deemed unnecessary and time to prepare refused.

“The bench commented on how they don’t know of any constitutional amendment in the works or how the review would affect it,” he said.

He added that based on the comments from the bench, the judges were unaware of any pressure upon parliamentarians or of the content of any constitutional amendment.

‘Much-needed corrective’

Barrister Yasser Latif Hamdani hailed the Supreme Court’s unanimous decision as a “much-needed corrective that was long overdue”.

“The decision in 2022 was a biased political decision designed to bring the PTI back in power in Punjab,” he said, adding that the 2022 decision was akin to rewriting of the constitution.

“To say that the votes could not be counted was clearly beyond the words and remit of Article 63A,” Hamdani said. “It amounted to a prior restraint on the will of an individual member of the assembly.

“If an individual member votes against or for a measure based on his or her conscience risking the penalty of vacation and in the process sacrifice of his seat, the constitution clearly provided for that vote to be counted,” he added. “To say that the vote could not be counted was utterly unconstitutional and illogical.”

‘Dissent beauty of Constitution’

Former attorney general Ashtar Ausaf said that he felt vindicated today as his argument “was also not to rewrite the constitution”.

He said, “It is about democracy” and “Dissent is the beauty of the Constitution”.

He added that the SC’s decision was a misstep in judicial history which is now corrected.

Ashtar Ausaf expressed disagreement with Ali Zafar regarding horse-trading. He said that parliamentarians need to fulfil their role adding, “PM is responsible and accountable. His accountability had ended.”

Decision ‘defied’ all legal principles

Meanwhile, Barrister Rida Hosain slammed the decision, stating that all settled principles of procedure and law were “defied” to reach this decision.

“There are legitimate questions on the legality of the bench that rendered today’s order,” she said. “Firstly, the chief justice and his nominee, without lawful authority, removed Justice Munib Akhtar from the Bench.

“Justice Akhtar made clear that he was not recusing yet the case proceeded without him. It is completely unjustifiable for a judge to be replaced from a case midway, and it is tantamount to stifling an alternative view,” she said.

She added that the committee to constitute benches must consist of three members, but the 63-A review bench was constituted by two judges.

“On the merits, there was rightful criticism regarding the original decision to not count a defecting parliamentarian’s vote in four situations — money bills, constitutional amendments, votes of confidence and no-confidence, and election of the prime minister or chief minister,” she said.

‘Decision restored legislative autonomy’

On the other hand, lawyer Ayman Zafar expressed surprise at the decision, praising it for restoring legislative autonomy.

“Today’s decision restores legislative autonomy, ensuring that elected officials are not mere instruments of party leadership but are rather empowered to represent their constituencies independently,” she said.

Zafar added that the ruling reaffirmed that constitutional precedents are not final and must evolve in light of present circumstances.

“The decision very clearly demonstrates the Supreme Court’s willingness to revisit its own rulings by way of judicial review, which plays a very important role in interpreting the Constitution,” she adds.

However, Zafar said that the ruling has raised concerns regarding judicial independence and its impartiality, especially given recusals by key judges from the original bench.

“This reshuffling of the judicial line-up it seems, may have contributed to a shift in the court’s interpretation presented earlier today, leaving room for questions about political sensitives influencing the ruling,” she highlighted.

“The timing of the decision is particularly crucial, as it seems to coincide with the government’s attempts to introduce amendments that could massively affect the judiciary and the Constitution,” Zafar adds.

“The ruling, by easing some of the political tension surrounding these reforms, may facilitate the passage of such amendments. However, it is not an easy task and it remains uncertain how the government will manage to navigate its way forward.”

“The broader implications of this ruling will only become more evident with time.”

‘Alarming context’

Lawyer Zainab Shahid said, “The context in which this review has been allowed is a lot more telling, alarming, and worthy of attention than the substance of the decision.”

Calling the Constitutional Package “ill-intentioned and anti-democratic”, Shahid highlighted that the amendment was defeated in the legislature due to a shortage of votes.

“The constitution and reconstitution of the bench for the review and the haste with which the matter has been concluded when the two senior-most judges of the Supreme Court do not even consider the bench validly constituted, belies all norms of procedure and violates the credibility of the Supreme Court,” she lamented.

Shahid stated that following the verdict, sitting members of the Parliament will defect from their party directions and vote in favour of the proposed constitutional amendment.

“Allowing such bought or coerced votes to be counted … opens the floodgates for manipulation and abuse by the state,” she said.