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.

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

Dawn columnist Barrister Asad Rahim noted 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, the “review petition was fixed just days after a constitutional amendment seeking to destroy the Supreme Court failed to pass”.

He further noted that the “review bench was formed without Justice Munib Akhtar despite this 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, 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 amendment has thrown the doors open to a new and sordid era for the justice system.”

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 can not 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.

Barrister Yasser Latif Hamdani noted that the SC decision was long overdue, adding that the previous interpretation amounted to a “rewriting of the Constitution”.

“To say that the vote could not be counted was utterly unconstitutional and illogical. Yet that is what the 2022 decision had done,” he said. “The penalty for violating Article 63 is the vacation of the seat and nothing more.”

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. After he concluded his arguments, Senator Farooq H. Naek, the PPP’s counsel, presented his arguments.

At one point, Additional Attorney General Aamir Rehman opposed referring the matter to the incumbent president, when asked by the CJP.

More to follow