The Supreme Court on Tuesday resumed hearing a petition seeking a review of the 2022 verdict on the defection clause under Article 63-A of the Constitution.

The review plea, filed by the Supreme Court Bar Association (SCBA), was set to be taken up by a five-member bench — headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and also including Justices Munib Akhtar, Aminuddin Khan, Jamal Khan Mandokhail, and Mazhar Alam Khan Miankhel.

According to a 2022 Dawn piece by former SC judge Faisal Arab, Article 63-A was inserted to ensure that when a party is voting on “certain important matters” — electing chief ministers, casting a no-confidence vote or a constitutional amendment — lawmakers “vote on the basis of a joint stand of the parliamentary party to which they belong”.

However, on Monday, Justice Akhtar refused to hear the appeal, penning a letter wherein he had questioned the inclusion of ad hoc judge, Justice Mazhar Alam Khan Miankhel, in the bench.

At the same time, Justice Akhtar explained that his inability to sit on the bench should not be construed as a recusal from the bench. In a second letter the same day, he protested the hearing conducted by a four-judge bench rather than one comprising five judges who had initially heard the case.

CJP Isa said yesterday he would convince his fellow judge to hear the case but had said the bench would be reconstituted if Justice Akhtar maintained his decision. Subsequently, the top judge convened a meeting of the bench formation committee at 9am today to decide on a fifth judge.

According to the meeting minutes, a copy of which was seen by Dawn.com, CJP Isa had proposed the name of Justice Mansoor Ali Shah, the senior puisne judge and a member of the committee as well.

However, Justice Shah — who had also earlier expressed his displeasure with recent changes to the bench-forming committee — “did not attend the meeting”.

Justice Shah’s personal secretary, after inquiring from him, said the judge “will not be participating nor wants to be a member of the said bench”, the meeting minutes detailed.

The committee therefore “decided to appoint the second senior member of the bench on the chief justice’s bench, namely, Hon’ble Justice Naeem Akhtar Afghan, on the bench, as his lordship would be available since bench No. 1 work would conclude at 11 am and work of no other bench will be disturbed”.

Justice Akhtar’s decision to not hear the review case had come against the backdrop of his removal from the bench-formation committee after the promulgation of an amendment ordinance granting the CJP authority to select any judge as the committee’s third member.

SC ruling on Article 63-A

Through its May 17, 2022 verdict, the SC had declared that the vote cast contrary to the parliamentary party lines under Article 63-A of the Constitution should not be counted.

Article 63-A, inserted into the Constitution in 2010, pertains to defection or “floor-crossing” in the assembly. It reads:

“If a member of a Parliamentary Party comprised of a single political party in a House votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to (i) election of the Prime Minister or the Chief Minister or (ii) a vote of confidence or a vote of no-confidence or (iii) a Money Bill or a Constitution (Amendment) Bill, he may be declared in writing by the Party Head to have defected from the political party and the Party Head may forward a copy of the declaration to the Presiding Officer and the Chief Election Commissioner and shall similarly forward a copy to the member concerned.”

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 Assembly and the vacation of the defecting lawmaker’s seat, the Constitution states.

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.

The petition argued that the interpretation of Article 63-A 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.

More to follow