Pakistan’s Supreme Court unilaterally accepted a review petition overturning its own 2022 decision related to the defection clause under Article 63-A of the Constitution. The outcome is a considerable shift in how the court interpreted the provision, which pertains to the disqualification of legislators for voting against party lines on major parliamentary decisions.
The judgment of May 17, 2022, had ruled that votes of those members of the parliament who were dissenting from party lines could not be considered under article 63-A in four key situations. Those included the election of the prime minister and chief minister, votes of confidence or no-confidence, bills for a constitutional amendment, and money bills. The new judgment revives the legitimacy of votes cast by defecting lawmakers-a huge legal shift.
Background of the Case
Article 63-A was enacted to check defection by legislators from party decisions by making them bound by the decisions of the party heads, who alone have the power to announce the final party position on parliamentary votes. In violation of this provision, earlier attached were the consequences of disqualification of a member from the National Assembly and superseding retirement of the seat held by a defecting legislator.
The judgment handed down in 2022 was in response to a presidential reference filed by former President Arif Alvi. The Supreme Court bench delivered a divided verdict returning a 3-2 decision in the case with then Chief Justice Umar Ata Bandial leading the bench. The majority opinion opined that there should not be an accounting of vote defects and that would decrease their value in parliamentary decisions.
The two dissenting judges in this case were Justices Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail. They held that the interpretation employed in the present judgment and order was a blatant case of rewriting the Constitution. Their dissent presented the June 2022 petition of the SCBA before the SC, which finally resulted in the verdict passed on September 20, 2022, reversing the judgment of the 2022 decision.
News Update
A five-member bench led by Chief Justice Qazi Faez Isa, along with Justices Naeem Akhtar Afghan, Aminuddin Khan, Jamal Khan Mandokhail, and Mazhar Alam Khan Miankhel decided unanimously on Thursday to review the 2022 decision. The SC also declared that the votes of defecting lawmakers should indeed be counted in future sessions of the legislature. The judgment about the matter is to be issued later in detail.
The judgment has been believed to provide a breathing space for the ruling coalition as it is not able to achieve the two-thirds majority required to pass constitutional amendments, especially judicial reforms. This decision may bring some needed support from defecting legislators that would make it easier to pass those reforms.
PTI Withdraws from Case
In a dramatic turn of events, PTI withdrew from the case proceedings during the hearing conducted today on Thursday. PTI’s lawyer Ali Zafar told the court that the party did not want to pursue the judicial process further unless their leader former Prime Minister Imran Khan was given the facility of a video link appearance. Chief Justice Isa expressed dismay over PTI’s decision as he was keen to hear their arguments in court.
Despite PTI’s withdrawal of the application, the court appointed Ali Zafar as judicial assistant to aid the court during all such future cases. During the hearings, Zafar took up the argument that even though the current battle is about constitutional amendments, it might even affect the already ongoing cases or the tenure of the Chief Justice.
Chief Justice Isa counterattacked the comments from Zafar with a stern warning against remarks that could be perceived as contempt of court. In the same breath, the chief justice decided that the judiciary had to remain a pure institution that should be free from political influences and this decision knocked on the back more political comment throughout the process in court.
Court’s Stand on Bench Composition and Review Petition
While responding to the pleas by PTI’s lawyer that the bench was not properly formed, the Supreme Court reminded that no Chief Justice can either direct or force any judge to join a particular bench. Justice Mansoor Ali Shah had himself retreated from the case and that was how Justice Naeem Akhtar Afghan had become part of the larger bench.
The court further clarified that the review petition was filed on time and not on an out-of-turn hearing and discounted PTI’s objections on this count. The court reminded the presidential reference that the President, as a symbol of national unity, is not required to give notices to all citizens when filing a constitutional reference.
The revocation decision of the Supreme Court of Pakistan over its judgment in 2022 is likely to throw open the country’s political scenario much beyond what stakeholders in the country have expected. With the approval of the law by the government, voting power from defecting lawmakers would become crucial for change to be felt in the parliament and judicial systems.
Read About the Objections of Justice Mansoor Ali Shah
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