• CJP-led bench unanimously sets aside 2022 judgement on Article 63A; says court ‘never permitted horse-trading’
• Previous ruling effectively ‘rewrote’ the Constitution, Justice Afghan observes
• Top judge dismisses impression of ‘infighting’ among apex court judges, acknowledges ‘difference of opinion’

ISLAMABAD: After more than two years, the Supreme Court on Thursday set aside its earlier opinion on Article 63A — a clause which deals with defection by lawmakers — as a five-member bench led by Chief Justice Qazi Faez Isa unanimously allowed a review petition, filed by the Supreme Court Bar Association.

In May 2022, the top court had issued a judgement in response to a reference, moved by then-president Arif Alvi, seeking its opinion on the matter. The verdict had said that votes cast against the party line would not be counted.

“For reasons to be recorded later, the civil review petition moved by the Sup­reme Court Bar Association (SCBA) is allowed unanimously and the May 17 majority judgement and detailed judgement of the majority are set aside,” CJP Qazi Faez Isa announced after the hearing.

In a brief order, the larger bench also appreciated senior counsel Syed Ali Zafar, who assisted the court as amicus curiae, even though his client Imran Khan wanted him to withdraw from the proceedings.

Soon after the judgement was announced PTI leader Salman Akram Raja described it as a “dark moment”, since it paved the way for the proposed constitutional package — which has been stalled due to a lack of numbers on the government side — and encouraged defections to perpetuate the incumbent government by allowing badly-needed votes from defectors to be counted.

“I am happy that the Constitution has been revived in its pristine form,” said SCBA President Shahzad Shaukat, who had also argued before the Supreme Court.

‘Unreasonable request’

At the outset of the hearing, Senator Ali Zafar informed the bench that his client, being a former prime minister, wanted to address the court in person via video link as he did in the NAB amendments case. He said he had instructions from his client not to proceed with the case, since the bench hearing the matter was not properly constituted.

The CJP, however, enlisted the senior counsel as an amicus since the court wanted to be guided by his acumen. The CJP also described the request by Imran Khan as unreasonable, explaining that the matter at hand was a very simple issue. He wondered whether his client ever addressed the court in the first round of litigation, and pointed out that this was not a petition filed by Mr Khan.

During the hearing, the counsel mentioned newspaper headlines regarding the passage of the constitutional amendment before Oct 25. He said the case would add to the desire of the coalition government to amend the Constitution through the proposed bill. But the CJP asked the counsel to stick to the review petition, adding that as a judge, he was clueless about any possible amendments.

The counsel again mentioned the government’s plan to set up a constitutional court and recalled that senior counsel Farooq H. Naek had also mentioned the same thing.

He said any judgement would be a conflict of interest, since it would then encourage horse-trading. The CJP, however, warned the counsel that he was on the verge of committing contempt, saying the bench would not allow a mockery of the court, since the lawyer had made a loaded statement. “We will issue caution to you,” the CJP said, adding that the court never permitted horse-trading.

The counsel reiterated that the majority judgement regarding Article 63A had discouraged horse-trading and, if the same was to be set aside, it would pave the way for defection.

Justice Jamal Khan Mandokhail also reminded the counsel that a provincial government was toppled only because of the majority judgement. The CJP observed that the lawyer should avoid bringing up the past, as this would only embarrass him, and alluded to the election of Sadiq Sanjrani as the Senate chairman.

Moreover, cameras were installed only to manipulate the elections in the Senate, the CJP recalled.

Backdrop of no-trust vote

During the hearing, Justice Naeem Akhtar Afghan drew a chronology of events that led to the filing of the presidential reference. It came against the backdrop of a no-confidence motion brought against then prime minister Imran Khan, he said, adding that the government had “used the Supreme Court’s shoulder” as it could not bring a constitutional amendment following the tabling of the no-confidence motion.

He also questioned that if floor-crossing was such a scourge, then why didn’t the previous assembly bring any legislation to discourage the practice.

Justice Afghan also regretted that the Supreme Court “rewrote the Constitution” by delivering the earlier judgement on Article 63A. He recalled that a chief minister was ousted after the judgement.

When the counsel urged the CJP to summon a full court to sort out issues in the judiciary, CJP Isa brushed aside the impression, clarifying there was no infighting at all among the judges.

He, however, conceded that there were differences of opinion over different matters.

Published in Dawn, October 4th, 2024