Amid reports of rifts among the top judiciary, Justice Munib Akhtar on Monday skipped a hearing on a petition seeking a review of the 2022 verdict on the defection clause under Article 63A of the Constitution.

The review plea, filed by the Supreme Court Bar Association (SCBA) in 2022, sought a review of the Supreme Court’s May 2022 decision where it ruled that the votes of defecting lawmakers will not be counted.

A five-judge Supreme Court larger bench comprised of Chief Justice of Pakistan (CJP) Qazi Faez Isa and Justices Akhtar, Aminuddin Khan, Jamal Khan Mandokhail and Mazhar Alam Khan Miankhel took up the petition seeking the review of the defection clause.

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, 2022, 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.

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.

Meanwhile, the federal government ruled out the reallocation of 80 MNAs of the Sunni Ittehad Council (SIC) to the PTI despite the issuance of the long-awaited detailed Supreme Court verdict in the reserved seats case.

A litany of developments occurred since the verdict from changes in the elections law seeking to bar the PTI-backed ‘independent’ legislators from joining the party to the apex court rebuking the Election Commission of Pakistan (ECP) for not fully implementing its short verdict. Moreover, National Assembly Speaker Ayaz Sadiq wrote a letter to the ECP, telling it that the court order could not be acted upon.

Information Minister Attaulah Tarar praised the speaker’s decision to “uphold parliament’s sovereignty” and slammed the PTI’s attempts to cross the floor of the house. “The PTI cannot reverse the clock and decide to join any party they wish,” Tarar said. “How can the PTI change the fact that they joined SIC, moreover, how can they convince members to join another party?”

What is Article 63A?

Article 63A, 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 63A 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.

According to a 2022 Dawn piece by former Supreme Court Justice Faisal Arab, 63A 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”.

The penalty for violating Article 63A is disqualification from the Assembly and the vacation of the defecting lawmaker’s seat, the Constitution states.

How does it work?

The article states that if a lawmaker defects from their party, the party head must declare it in writing and submit it to the Election Commission of Pakistan (ECP), however, they must issue the defecting parliamentarian a show-cause notice before submitting their declaration.

Once submitted, the “presiding officer” — the speaker of the National Assembly or Senate chairman — must refer the declaration to the chief election commissioner within two days. Once the declaration is confirmed by the ECP, the defecting lawmaker will “cease to be a member of the house and his seat shall become vacant.”

How this ties to the Constitutional Package

Taking up the review please comes amid the government’s efforts to pass a Constitutional Package.

Former prime minister and PTI founder Imran Khan has already expressed apprehensions that the Supreme Court would pave the way for floor crossing by setting aside the verdict on Article 63-A.

Referring to the detailed verdict on the reserved seats, the PTI fou­nder said the eight judges explained that the ECP decision on the par­­ty’s election symbol was “biased”. He said the PTI was deprived of reserved seats, and the “fraud elections” were allegedly given protection by the judiciary.

The bill is expected to abolish the jurisdiction of the apex court in relation to constitutional petitions; form a new constitutional court headed by a chief justice appointed by the president on the sole advice of the prime minister; no court (old or new) shall have the power to examine the actions of officials acting under “national security” laws; and high court judges can be transferred from one court to another.

Lawyers affiliated with the PTI declared that the proposed ‘constitutional package’ was against the basic structure of the Constitution and “destructive” to the country. A September 19 convention hosted by the Lahore High Court Bar Association (LHCBA), passed a declaration that the next CJP should also be appointed on the basis of seniority principle, with PTI Senator Hamid Khan claiming the package aims to “undermine” the judiciary.

As the PML-N-led coalition government remains hopeful of securing Jamiat Ulema-i-Islam-Fazl (JUI-F) Maulana Fazlur Rehman’s support for its proposed constitutional amendment package, the PTI has vowed to block the move to pass the highly contentious bill in parliament, even if the JUI-F chief throws his support behind it.

The government attempted, unsuccessfully, to pass the constitutional package by securing a two-thirds majority — 224 votes out of the 336 members in the National Assembly. The ruling coalition currently holds 213 seats and is relying on JUI-F’s eight seats and three additional votes from the opposition to pass the package.

PTI information secretary Sheikh Waqas Ahmed has accused the government of holding six PTI MNAs hostage during its unsuccessful attempt to pass the constitutional package in parliament on Sept 14, which coincided with the weekend holidays on Saturday and Sunday.

“They have kept our six members hostage and pressured them to vote in favour of the proposed package,” he added.

Balochistan National Party-Mengal chief Akhtar Mengal also claimed on September 14 that two senators of his party were being “pressurised” to vote in favour of a highly anticipated “constitutional package”.

Senior PTI MNA Asad Qaiser has similarly accused the government of using strong-arm tactics to bully its opponents into supporting the constitutional package, hours before police took the PTI’s top leadership into custody over a case pertaining to its Sept 8 rally.

Speaking in the NA, Qaiser had said his party’s lawmakers were being “coerced” to support the government’s legislative package and asked Deputy Speaker Ghulam Mustafa Shah to intervene.