Objection raised to new SC bench hearing Article 63-A verdict review plea

Ali Zafar, counsel for former prime minister and PTI founder Imran Khan, on Tuesday objected to the Supreme Court (SC) bench formed to hear the review petition filed in the case of interpretation of Article 63-A of the constitution, reported 24NewsHD TV channel.

A five-member larger bench, headed by Chief Justice of Pakistan (CJP) Justice Qazi Faez Isa, heard the case.

CJP Isa asked Zafar to sit down, saying he would look into his objection later.

He said what was happening in the SC was no secret. “I want to take the court into confidence on what happened yesterday,” he said, adding, “Yesterday, Justice Munib Akhtar was requested to join the bench. But he did not.”

Then, the chief justice went on to say, he recommended including Justice Mansoor Ali Shan on the bench. “This morning, the judges’ committee waited for him so that the meeting could get underway. But the latter refused to attend the meeting.”

“I had been left with no other option. I did not want to disturb other benches. So Justice Naeem Afghan was requested to join us, which he accepted,” Justice Isa elaborated.

“Now when the bench is complete. It is time to start the proceedings,” he said.

When the CJP was informed that there was a presidential reference as well as the petitions filed under Section 184/3 in the case, he remarked these were two different things. “How could both be merged to give one decision?”

He was of the view that only an opinion could be given about the reference, and not a decision.

The chief justice said that when a reference was filed, only the legal questions raised by the president in it were answered. “And in case the president fails to act in the light of those answers, it did not invite contempt of court proceedings.”

He then asked Advocate Shahzad Shaukat, “Who was the president when the reference had been filed?”

The lawyer informed him that at that time Arif Alvi was the president.

“Did the president raise legal questions in the reference?”

Advocate Shaukat informed him that he had raised four questions.

The lawyer then said that the former president had sought the court’s opinion about the element of dishonesty in light of the article under review. “The SC had then made an observation that the article could not be looked at in isolation. The apex court had declared that political parties were an important component of a democratic system,” he said, adding, “The court had then declared the act of members of the parliament of voting against the party lines a ‘cancer’.”

The chief justice asked whether the opinion just mentioned was an answer to the question raised in the reference.

Advocate Shaukat, who is also the Supreme Court Bar Association president, replied in negative.

“Was there any question in the reference relating to morality?” Justice Isa asked.

“The court had said that a turncoat’s vote would not be counted,” the lawyer replied.

He recalled that one of the questions pertained to the conscience of an MP.  

He argued that the court, by giving its opinion, tried to rewrite the constitution.

Justice Isa asked him to confine himself to the facts only.

He wondered why the word ‘cancer’ was used to describe the act of defection.

The lawyer then said that the Bar was objecting to the majority decision.

“Where in the verdict is it written that if a vote of an MP is not counted, he will cease to be an MP?” the CJP questioned.

As a matter of fact, the chief justice said, the matter was left to the party head. “Whether to disqualify the dissenting party MP or not.” 

“What if the party head does not send the declaration of disqualification?” he asked.

Advocate Shaukat replied then the matter would be over.

Justice Isa remarked that if votes cast against or in favour of a prime minister would not be counted, then the no-trust vote would become a meaningless exercise.

He said voting was held only because the votes had to be counted in the end.

The chief justice questioned, what would be the situation if any party member was not pleased with the party head and wanted to see him removed from the post?

The CJP said that the interpretation of the article gave sweeping powers to the party head.

He said that in the UK, the prime minister’s own party’s MPs tabled a no-trust motion against him.

Advocate Shaukat said that it was written in the original decision that defection amounted to ‘corrupt practices’.

The chief justice remarked it was difficult to determine whether the intention of the defecting legislator was good or bad. “Don’t you think it implies transforming the parliamentary form of government into a presidential one?”

The SCBA president said it had been mentioned in the original decision that there existed not a single example in which a lawmaker had defected because of his conscience.

“Really! Is that the case?” the chief justice questioned. 

Advocate Shaukat replied, “Yes sir. The same words are written in the original verdict.”

The CJP then asked whether one should consider those changing political parties often ‘men devoid of conscience’.

The lawyer replied that there was a reference in the decision to Raza Rabbani, who, as per the court, gave a vote against his conscience.

“After all, who are we to doubt somebody’s conscience?” the chief justice said.

He added there existed a verdict by Justice Mansoor on Article 62 (1) (f).

He observed that it was difficult to ascertain whether one took a decision based on his or her conscience. “After all, who will determine the nature of the conscience? How, we, as judges, can establish that a person’s conscience made him or her vote for or against somebody?

Justice Isa said that no penalty had been laid down in the US Constitution for defection.

Advocate Shaukat prayed to the bench to reverse the original decision.

“Will you please tell me, what is wrong with this decision?” asked the CJP.

“The decision is akin to rewriting the constitution,” replied the SCBA president.

The chief justice said it was not just that the votes of dissenting MPs would not be counted. “As a matter of fact, an MP will have to vote if the party directs him to do so.”

The SCBA president said that filing a review petition was entirely a ‘constitutional’ matter. 

He said that following the no-trust motion was moved against the former prime minister Imran Khan in March 2022, a petition, seeking lifetime disqualification of defecting MPs, was filed. “The then prime minister had given a call for a protest rally. But the attorney general of that time had given the court an assurance that not a single lawmaker would be barred from attending the assembly session convened for voting on the motion,” Advocate Shaukat reminisced.  

The federal government and the PPP, on the occasion, announced their support for the SCBA’s plea.

The CJP said anybody, including former president Arif Alvi, willing to appear in the court in connection with the case was welcome.

The court then adjourned the case’s hearing until tomorrow. 

Justice Naeem Afghan replaces Justice Munib on larger bench

A new larger bench of the Supreme Court was constituted earlier Tuesday replacing Justice Munib Akhtar with Justice Naeem Akhtar Afghan which will take up today the review petition regarding interpretation of Article 63-A of the Constitution.

According to the new cause list, the new five-judge bench led by Chief Justice of Pakistan Justice Qazi Faez Isa and comprising Justice Ameenuddin, Justice Jamal Mandokhel, Justice Mazhar Alam Miankhail and Justice Naeem Akhtar Afghan will conduct the hearing at 11:30 today.

Earlier on Tuesday, the meeting of the Practice and Procedure Committee, which was due to be held at 9:00 am to constitute a new bench after Justice Munib Akhtar recused himself from hearing the review petition filed in the case of interpretation of Article 63-A of the constitution, could not be held.

Sources told 24News TV channel that CJP Justice Qazi Faez Isa and Justice Ameenudin Khan kept waiting for Justice Mansoor Ali Shah so that the meeting could begin. But the latter did not turn up; nor did he send a message. 

According to the minutes of the Supreme Court’s (SC) today’s Practice and Procedure Committee meeting, Justice Mansoor Ali Shah was asked whether he would attend the meeting.

Even his Secretary Sadaqat Hussain was contacted.

The judge not only excused to attend the committee meeting but also declined to become part of the bench, read the minutes.  

The minutes inform that following Justice Mansoor’s non-availability, Justice Naeem Afghan was included in the bench.

Justice Afghan showed his willingness to be on the bench.

Yesterday, Justice Munib Akhtar had written a letter to the Supreme Court Registrar refused to be part of the five-member bench constituted to hear a review petition filed against the interpretation of Article 63-A of the constitution by the Supreme Court, saying that four judges could not have sat and heard the matter that was listed before a five-member bench.

Justice Munib stated this in his second letter to the top court's registrar on Monday.

It is noteworthy to mention here that the originally formed five-member bench, headed by CJP Qazi Faez Isa, comprised of Justice Ameenuddin Khan, Justice Jamal Khan Mandokhail, Justice Mazhar Alam, and Justice Munib Akhtar.

The jurist's second letter prompted the top court to adjourn the hearing of the petition after Justice Munib did not attend yesterday's hearing for which he wrote a letter to the SC registrar, stating that he did not recuse from the bench, however, he cannot be a part of a bench that was constituted by Practice and Procedure Committee. 

The apex court’s May 17, 2022, decision on a presidential reference regarding Article 63-A stated that a vote cast by a defected member of parliament against party policy would not be counted, and that the duration of disqualification would be determined by parliament.

This 3-2 decision, led by then-Chief Justice Umar Ata Bandial, saw Justices Mazhar Alam Miankhel and Jamal Khan Mandokhail dissenting. The majority opinion, written by Justice Munib Akhtar, was challenged through various review petitions that have remained pending until now.

Subsequently, the Supreme Court Bar Association (SCBA) had filed a review petition against the judgment, arguing that the framers of the constitution intended the disregard of defecting votes to be a temporary measure.

Reporter: Amanat Gishkori