- Justice Afghan becomes part of five-member bench following Justice Munib’s ‘unavailability’
- SCBA president argues apex court’s 2022 verdict was an attempt to re-write constitution
- PTI’s lawyer opposes review petition while court to hear remaining lawyers tomorrow
ISLAMABAD: The Supreme Court on Tuesday resumed hearing the review petition against the top court’s 2022 verdict on the defection clause under Article 63-A of the Constitution, with the federal government and the PPP also backed the Supreme Court Bar Association’s (SCBA) review plea.
In 2022, the top court-led by the then chief justice Umar Ata Bandial had declared that the dissident members of a parliamentary party cannot cast votes against their party’s directives and would stand disqualified if he does so.
The development comes as a SC larger bench, led by Chief Justice Qazi Faez Isa on Tuesday resumed hearing on the review petition. The newly formed bench comprises Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Mazhar Alam Khan Miankhel and Justice Naeem Akhtar Afghan.
The existing bench was constituted after Justice Munib Akhtar, on Monday, expressed unavailability from being part of the bench — the reasons for which the latter communicated to the apex court’s registrar in multiple letters.
A day earlier, CJP Isa had adjourned the hearing due to Justice Munib’s absence and said that Justice Munib would be requested to rejoin the bench, which otherwise, would be reconstituted.
At proceedings began on Tuesday, the CJP addressed the bench formation issue and revealed that Justice Munib retained his stance regarding his presence on the bench.
On the issue of the judges’ committee, the chief justice said that he recommended including Justice Mansoor Ali Shah and that the puisne judge’s office was contacted in this regard.
However, owing to Justice Mansoor’s refusal, the CJP said that they were left with no option but to include Justice Afghan in the bench.
Appearing before the court today, SCBA President Shahzad Shaukat objected to the 2022 verdict saying that there was a presidential reference and petitions under Article 184(3) of the Constitution.
“How can the judgment be given by combining both? Only an opinion can be given on a presidential reference and not a decision,” responded CJP Isa.
Furthermore, the senior lawyer also argued that the apex court’s 2022 verdict was an attempt to re-write the constitution.
To this, the chief justice remarked: “When the constitution is clear, how can [one] add something to it.”
In response to the top judge’s question whether the said judgement provisioned immediate disqualification of a lawmaker if he votes against party lines, the additional attorney general replied in the negative.
“No, nothing like that has been said in the judgement,” the AAGP noted.
When asked who opposed and supported the SCBA’s review plea, Pakistan Thereek-e-Insaf’s (PTI) Barrister Ali Zafar said that he was against the petition, whereas the federal government and the PPP said that they supported the review request.
PPP’s lawyer Farooq H Naek said: “The Constitution does not have any provision against counting of [lawmakers’] vote[s].”
After hearing the arguments, the chief justice said the court would hear the remaining lawyers tomorrow and adjourned the hearing till Wednesday.
PTI lawyer raises concerns over bench formation
The hearing began with Barrister Ali Zafar, representing the petitioner, raising objections to the formation of the bench.
He expressed concerns about the replacement of Justice Muneeb Akhtar with Justice Naeem Akhtar Afghan in the five-member bench.
Chief Justice Isa assured the counsel that his concerns would be heard at a later stage in the proceedings, urging him to proceed with the arguments.
Chief Justice Isa also stressed that the Supreme Court is operating transparently, with no decisions being made behind closed doors.
“These days, nothing is happening behind closed doors in the Supreme Court. The larger bench is now complete, and we can begin the proceedings,” he stated.
Contradictions in article 63-A interpretation
During the hearing, Chief Justice Isa pointed out a significant contradiction in the previous ruling.
He remarked that the decision to de-seat a lawmaker for defying party directions should be straightforward, but the involvement of Parliament in determining the disqualification period adds complexity.
He questioned how the decision-making process could be left to both the judiciary and Parliament, calling it a “clear contradiction.”
“On one hand, the ruling states that a defecting member should be de-seated, but on the other hand, it allows Parliament to decide the length of disqualification.
This is contradictory,” the Chief Justice said, urging that the constitution’s wording should be the sole basis for such decisions.
Review of presidential reference
The case has its roots in the presidential reference filed by President Arif Alvi in March 2022, during the Pakistan Tehreek-e-Insaf (PTI) government.
The reference sought the Supreme Court’s opinion on whether the votes cast by dissident lawmakers could be counted and whether their actions would lead to disqualification.
In response to the reference, a five-member Supreme Court bench, led by former Chief Justice Umar Ata Bandial, issued a verdict in May 2022.
The court ruled that the votes of dissident lawmakers should not be counted and that the Parliament could legislate on the period of their disqualification.
The decision was reached with a 3-2 majority, with Justices Ijaz-ul-Ahsan, Muneeb Akhtar, and the Chief Justice ruling in favour of the disqualification, while Justices Jamal Khan Mandokhail and Mazhar Alam Miankhel dissented.
Supreme Court divisions
The hearing also revealed the divisions within the Supreme Court over the interpretation of Article 63-A. Chief Justice Isa remarked that there has been growing criticism regarding how the Supreme Court is handling such sensitive matters.
“There are significant objections to how the Supreme Court is being run, and this is not conducive to political stability in Pakistan,” he said.
The Chief Justice also questioned the logic behind ruling that a dissident member’s vote should not be counted in cases of no-confidence motions.
He argued that if the vote is not counted, it could render Article 95 of the constitution, which governs the procedure for no-confidence motions, ineffective.
“If a dissident lawmaker’s vote is not counted in a no-confidence motion, then a Prime Minister cannot be removed, meaning that Article 95 has become ineffective,” Isa noted.
Political and legal implications
The review of Article 63-A’s interpretation has significant political implications, as it affects how dissent within political parties is handled and the potential consequences for lawmakers who go against party lines.
The Chief Justice’s comments highlighted the need for clarity to avoid contradictions that could lead to further political instability.
Chief Justice Isa also warned that such contradictions in the law could affect the integrity of democratic processes.
“This judicial decision appears to make the no-confidence motion ineffective. In the UK, for example, the Conservative Party was able to change its Prime Minister while maintaining party governance,” he said, drawing a comparison with the political dynamics in other countries.
The court will continue its review of the petitions, with more arguments expected in the coming days.
Justice Munib’s letters
Elaborating on the reasons behind his unavailability from yesterday’s hearing, Justice Munib has said that he did not recuse from the bench, saying he cannot be a part of a bench that was constituted by the Practice and Procedure Committee — the three-member judges’ committee of the apex court which decides on the formation of the SC benches and cases related to human rights.
It is to be noted that following the promulgation of the Supreme Court (Practice and Procedure) Amendment Ordinance 2024, Justice Munib was replaced with Justice Amin-Ud-Din Khan by CJP Isa.
The judge, in his letter, noted that the “matter of fixing a bench for the CRP appeared suddenly on the committee’s agenda at its 17th meeting held on July 18, it seems for the first time even though the committee has been meeting since before July 17.”
“Even though no bench was constituted, the Chief Justice (in minority) had proposed a five-member bench, to be headed by the senior puisne Judge. That proposal has now been abandoned and the Chief Justice has himself assumed command of the CRP, for reasons that are not unknown,” he wrote.
“I may also note that the bench now constituted includes Justice (R) Mazhar Alam Miankhel, who currently attends sittings of the Court as an ad hoc judge in terms of Article 182. The reasons why it was considered necessary to so request Justice Miankhel (and another retired Judge) are set out in the minutes of the meeting of the JCP held on 19.07.2024,” the judge added.
Seeking his letter to be made part of the case, Justice Munib said that his unavailability from the bench should not be considered as a recusal and pointed out that Justice Mazhar’s — who was part of the bench that gave the May 2022 ruling and had in fact dissented with majority judgement — inclusion in the five-member bench hearing the case that it was contrary to Article 182 of the Constitution.
This was followed by a second letter from the SC judge where he highlighted that four judges could not have sat and heard the matter that was listed before a five-member bench.
“I am at a loss to understand as to how the five-member Bench constituted in terms as set out in my earlier note sent to you today could be ‘converted’ into a four-member bench [….] I must nonetheless regretfully, though respectfully, record my protest as to what has been done,” wrote the judge while referring to yesterday’s hearing.
Defection clause issue
The issue at hand owes its origins to a reference filed by the Pakistan Tehreek-e-Insaf (PTI) government in the SC back in 2022 seeking the apex court’s opinion on Article 63(A) to curbing the menace of defections, purification of the electoral process, and democratic accountability.
The court, via a 3-2 judgement, had then announced the verdict against defections and barred lawmakers from going against their party’s policy lines when voting in the parliament.
Three judges — then-CJP Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Munib had voted in favour whereas Justice Mandokhail and Justice Mazhar disagreed with the verdict.
The SCBA filed a plea moving the apex court to take back its opinion on the verdict’s paragraph about not counting the votes of dissidents by reviewing the interpretation made on May 17, 2022. It maintained that the dissidents should only be de-seated but their votes are supposed to be counted as per the Constitution of Pakistan.
“The apex court’s opinion about not counting the dissident’s votes is against the Constitution and equal to interference in it,” the SCBA stated in the plea.
