ISLAMABAD: A five-judge Supreme Court larger bench will take up on Sept 30 a petition filed by the Supreme Court Bar Association (SCBA) seeking a review of the May 17, 2022 judgement on the defection clause under Article 63A of the Constitution.

Headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, the bench consists of Justice Munib Akhtar, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail and Justice Mazhar Alam Khan Miankhel.

Legal observers anticipate intense debate, especially against the backdrop of Justice Munib Akhtar’s removal from the three-judge committee established under the Supreme Court (Practice and Procedure) Act 2023 after the promulgation of an amendment ordinance granting the CJP authority to select any judge as the committee’s third member.

Soon after the change in the composition of the committee, senior puisne judge Justice Syed Mansoor Ali Shah declined to attend its meeting.

He expressed his concerns in a letter, saying he cannot participate until the SC full court determines the constitutional validity of the amendments made through the ordinance, or the judges resolve to act upon the amendments in a full court meeting on the administrative side, or the earlier committee is restored with the second senior-most judge nominated by the CJP.

SCBA contends court’s interpretation of Article 63A amounts to rewriting Constitution

In response, the CJP in a letter said Justice Akhtar was replaced for several reasons, including his indifference to a piling backlog of cases. And while on vacation and not available for court work, Justice Akhtar insisted on participating in the committee meetings, suggesting his lack of trust in the next senior judge, the letter added.

The petition

The SCBA, in the review petition, contended that the court’s opinion on Article 63A was not in accordance with parliamentary democracy established by the Constitution.

Through its May 17 judgement, the Supreme Court had declared that the vote cast contrary to the parliamentary party lines under Article 63A of the Constitution should not be counted.

However, the SCBA petition argued that the framers of the Constitution intended to disregard defecting votes to be a stop-gap arrangement for ensuring stability during the Constitution’s first decade.

“Had it been the intent of the framers, or subsequently the parliament to provide for disregarding defecting votes, a constitutional provision similar to the proviso of the erstwhile Article 96(5) could have been inserted. Thus in the absence of such a constitutional provision, the interpretation of Article 63A adopted by the Supreme Court amounts to re-incarnating the proviso to Article 96(5) of the Constitution, which had not only been expressly subjected to a sunset clause by the framers, but also never been reintroduced by the parliament,” it added.

The petition argued that the interpretation of Article 63A adopted by the Supreme Court amounts to rewriting/reading into the Constitution when the court itself had held in the past that the Constitution was to be interpreted strictly in accordance with the clear and express language and that there was no room to supply additional meaning to constitutional provisions.

The petition pleaded that the interpretation of Article 17 (2) of the Constitution in the May 17, 2022 judgement merits reconsideration and review since the provision guarantees and protects the rights of citizens to participate in the constitutional democracy through their representatives.

“The parliamentary form of government is one of the salient features of our Constitution, as recognised by the Supreme Court in the 2015 District Bar Association case. Besides, the preamble of the Constitution also provides that the state will exercise its powers and authority through the chosen representatives of the people.

“Thus, the first and foremost obligation of public representatives is to act in accordance with the will of their constituents, and not in strict loyalty to the political party,” the petition emphasised.

“It is for this very purpose that the language of Article 63A allows a member of the parliament to contest elections after being de-seated on account of defection. If a member’s defecting act is in consonance with the will of the electorate, the member can return to the House to continue representing the same constituency.

“Article 63A was incorporated into the Constitution in a particular historical context which must inform any interpretation of the provision. Thus, the ruling of the Supreme Court relating to Article 17(2) cannot be relied upon to interpret Article 63A in a manner inconsistent with the clear and unambiguous language,” the petition argued.

Published in Dawn, September 28th, 2024