• Detailed SC judgement notes earlier order reflected contempt for parliamentarians, relied heavily on moralisms, non-legal terminology
• CJP says 2022 verdict vitiated right to fair trial, ignored several constitutional provisions

ISLAMABAD: The Supreme Court on Thursday held that the May 17, 2022 majority judgement on Article 63A, which deals with defection, had all but transformed the head of the political party into a dictator, as they could never be challenged.

Authored by Chief Justice of Pakistan (CJP) Qazi Faez Isa, a detailed 23-page judgement explained why the five-judge Supreme Court bench on Oct 3 unanimously overturned the earlier order, in which it was held that Article 63A envisaged that votes polled contrary to party lines would not be counted.

The ruling explained that the earlier majority’s judgement reflected a complete distaste for parliamentarians, as it proclaimed that in the history of Pakistan and its parliament, only once did a parliamentarian come close to becoming a ‘conscientious objector who took the path of defection and de-seating under Article 63A’.

The expression of such contempt for politicians and parliamentarians is regrettable, the judgement observed. “Let us not forget that Pakistan was achieved by politicians who had gathered under the banner of the All India Muslim League and its Quaid (leader), Mohammad Ali Jinnah, who strictly followed the constitutional path.”

The verdict also reserved some flak for then president Dr Arif Alvi, then-prime minister Imran Khan, and then deputy speaker Qasim Suri as it referred to the no-confidence motion against Imran Khan. It said the trio did not abide by their oath to act in accordance with the Constitution.

The judgement explained Article 63A was ‘simple, clear and unambiguous’ and patently self-executory. It did not require interpreting; however, this was done away with, and in its place, a new article emerged through the earlier majority judgement.

The earlier ruling not only negated the express provisions of Article 63A but also other provisions of the Constitution, namely Article 91(7), Article 95, Article 130(7), and Article 136.

The judgement authored by CJP Isa explained that the party head’s jurisdiction to issue a declaration of defection had instead been conferred upon the Supreme Court by the earlier judgement. Besides, the Election Commission of Pakistan (ECP) was also divested of its jurisdiction, and even the appellate jurisdiction of the Supreme Court under Article 63A (5) was effectively abolished.

“If a court confers jurisdiction upon itself, it vitiates the fundamental right of fair trial and due process,” it added.

Similarly, judges in the majority did not note the particular language used in the Constitution. In Article 63A (4), the word cease is used and it’s stated that a member ‘shall cease to be a member’ whereas the word disqualify is used in Article 63— ‘disqualifications for membership.’

Ceasing to be a member (on account of defection) is not mentioned in Article 63, let alone that the defector is disqualified or suffers disqualification, it went to explain.

To state the obvious, cease means to stop, to come to an end or to forfeit whereas disqualification or disqualify means to render ineligible, to be unfit or to disentitle. Thus the words and the language used in the Constitution, its placement and context were overlooked by the three judges in the majority.

The judgement also regretted the tendency to substitute constitutional provisions with personal likes and moralism must be avoided.

While lawmakers may transform moral precepts into laws, the courts, however, are concerned with what is lawful or unlawful, as per the detailed judgement.

The parliament makes the law which the courts apply and if there is any ambiguity in the law a judge interprets it, the ruling said, adding that this too must be done within the parameters of the law and as per the well-settled rules of interpretation.

Instead of a constitutional or legal basis, the judgement regretted, the majority’s judgement has a surfeit of moralisms and non-legal terminology, such as healthy (41 times), unhealthy (five times), vice (nine times), evil (eight times), cancer (eight times), menace (four times), etc.

According to the Supreme Court, the earlier judgement was against the clear language and mandate of the Constitution and also contrary to earlier decisions of the larger benches.

Thus the conclusions arrived at by judges who were in the minority in the May 17 judgement are sustained, the judgement said, referring to dissent notes by Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail at the time.

Published in Dawn, October 11th, 2024