The Supreme Court is hearing the Article 63A interpretation review case, with a five-member bench headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa presiding over the proceedings.
The case revisits the interpretation of Article 63A concerning the disqualification of parliamentarians for defying party directives.
The CJP reiterated that Justice Muneeb Akhtar, who had previously written letters expressing his objections to the bench, was invited to sit, but maintained his earlier stance. Initially, Chief Justice Isa said, he had proposed including Justice Mansoor Ali Shah, who declined to join both the bench and the Practice Procedure Committee, leading to the inclusion of Justice Naeem Akhtar Afghan "without disturbing other benches".
The chief justice Isa remarked, "Nothing happens behind closed doors in the Supreme Court any more."
Barrister Ali Zafar, representing the Pakistan Tehreek-e-Insaf (PTI), again objected to the bench’s composition. However, Chief Justice Isa asked Zafar to remain seated, stressing that arguments would be heard in the proper sequence.
"Ali Zafar, sit down, you will be heard at the appropriate time. You have no right to argue first, as the person who has filed the revision petition has the right to argue first. Your own bar's elected president is on the rostrum, at least for once adhere to democratic principles," the CJP said while addressing Barrister Ali Zafar.
Also Read: Article 63A review plea: Justice Naeem Akhtar added to bench
Supreme Court Bar Association (SCBA) President Shahzad Shaukat offered his arguments regarding the background and legal questions raised in the case. He told the court that there was a presidential reference in this case as well as applications under Article 184(3). To this, the CJP questioned how both are two separate jurisdictions and how a verdict could be delivered by combining the two.
"Only an opinion can be given on a presidential reference, not a decision. Aren't the two jurisdictions different? Was there a court order at that time on the reasons for combining the two cases? Only legal questions raised by the president are answered," the CJP noted.
He added that if the opinion on the reference is not followed, the president cannot be tried for contempt. When the SCBA president reminded that the president at that time was Dr Arif Alvi, the CJP remarked that the government of the time was also a petitioner in the case as a government. "What legal questions were raised by the president?" he asked.
Shahzad Shaukat told the court the president had raised four questions in the reference and sought an opinion on the aspect of cheating under Article 63A. He added that the court had said that Article 63A could not be seen in isolation and declared that political parties were important for democracy.
"The court declared that deviation from party policy is a cancer for political parties," Shaukat recalled. The chief justice asked if the court’s previous opinion had genuinely addressed the president’s questions, to which Shaukat answered in the negative.
CJP Isa further asked if the question related to ethics in the reference was genuine. Shahzad Shaukat reminded that the court had declared the vote of a disaffected member would not be counted, adding that a question was related to the voice of conscience of a member also. "The decision sought to rewrite the constitution," the senior lawyer observed.
CJP Isa noted that in a question in the reference, the word cancer had been mentioned for defection, asking that if that word was not there, would the impact of the question be reduced.
The CJP asked what the objection was to the minority decision or majority. “We are objecting to the majority decision,” Shahzad Shaukat replied.
“Where is it written in the decision that if the votes are not counted, the person will be disqualified?” the chief justice questioned, adding that the verdict leaves the matter to the party leader.
“It is the will of the party leader, if he wants disqualify the member or not. What will happen if the party chief does not send the declaration of disqualification?” CJP Isa questioned.
The matter would be over, replied Shaukat. The CJP replied that the matter of disqualification will then go to the election commission, which will notify the member concerned, adding that the ECP will decide in 30 days that can be challenged in court.
“How did you figure out that the decision says the member will be disqualified immediately?” asked the CJP.
The court then asked the additional attorney general (AAG) if the judgement mentions a member will be immediately disqualified for casting his vote and not being counted.
The AAG replied in the negative. “If a vote is not counted in the no-confidence voting, a prime minister cannot be removed,” CJP Isa declared, adding that this meant Article 95 had become ineffective.
The PTI lawyer asked if the votes are not counted, why it is also a condition for the budget to be approved by parliament.
The CJP also asked if the court said anything about Article 95 in its decision. “What will happen if a party member does not like the party leader and wants to remove him? What is the point if the votes of members cannot be counted?” CJP Isa asked.
Justice Mandokhel remarked that in Balochistan, members of a party had brought a no-confidence motion against their own chief minister.
The CJP remarked that it is difficult to decide the matter of one's conscience, and asked if the verdict affected articles 95 and 163. “Isn't it akin to changing the parliamentary system to a presidential system?” he asked.
Shaukat said that in the judgment, it has been said that there is not a single instance that defection is done on the voice of conscience.
The CJP then asked whether those who keep switching political parties can be considered possessing a conscience or not.
Shaukat replied that PPP leader Raza Rabbani was also referred to in the verdict that he voted for the party against his conscience. The CJP also asked if a judge who disagrees with a decision will also be deemed having a conscience or not. “Who are we to call someone with a conscience or not?” CJP Isa asked.
The lawyer asked what will happen if the party leader and parliamentary party leader give separate instructions. “How can one determine obeying whose instructions will be considered the voice of conscience?” he asked further.
The CJP then referred to Justice Mansoor Ali Shah's decision of Article 62(1)(f) that clarifies which disqualification clauses are automatically enforced and which are not.
Petitioner Shahzad Shaukat requested the court to reconsider its ruling, which he argued was tantamount to rewriting the Constitution. Justice Isa pressed Shaukat to pinpoint the specific issues with the ruling.
The CJP noted that the previous decision did not simply say a vote will not be counted, adding, "The decision says that voting is mandatory if the party says so." He asked what action can be taken against a member for not voting as per party instructions.
The petition for a review was filed in 2022, but Justice Isa questioned why the Supreme Court bar, under the leadership of former president Abid Zuberi, did not withdraw the petition and both SCBA groups retained their stance.
Shaukat observed that the review plea was purely a constitutional issue, adding that after the incident, there was a request for lifelong disqualification of the defecting members. The PM of the time had given a call for a protest rally, Shaukat remarked and also mentioned the attack on Sindh House.
“The Sindh House was attacked and an impression was given that the defectors were in the Sindh House,” he explained. The CJP then asked if an application was filed against the attack in the Supreme Court.
The federal government and the PPP both expressed backing for the review plea.
The court also heard arguments from Barrister Ali Zafar, representing PTI Founder Imran Khan, who stated that he had not received proper notice of the case. Justice Isa asked the counsel to just say whether he supported or objected to the review. The lawyer replied he wanted to oppose it.
PPP counsel Farooq H. Naik explained that not counting a vote is not in the Constitution. “If a vote is not counted, it means I have not done anything wrong. Defection will be applied when the vote is counted,” he noted.
The CJP observed that the approval of a revision petition does not mean that the decision is wrong, and reminded the parties that while the scope of a review was limited, the court could only examine the reasons for the judgment, not the outcome itself.
The order of the day stated that according to the petitioner, the review plea was delayed due to the non-issuance of a detailed decision, adding that the registrar's office should find out when the detailed decision was issued. It further mentioned that Justice Muneeb Akhtar refused to be part of the bench and when he was requested once more, he wrote another letter.
Justice Naeem Akhtar Afghan was made a part of the bench by calling a meeting of the Judges Committee again, however, several questions came up during the hearing on which the parties are directed to assist the court.
Ali Zafar argued that his client was in jail and he would go seek instructions from him. “This is a constitutional matter; what instructions will you take on it? Will he tell you not to obey the Constitution?’ remarked CJP Isa.
Ali Zafar remarked that the incumbent president has not filed a review. The CJP observed that if the former president wants to come and assist the court, he’s more than welcome.
At the end of the hearing, Ali Zafar again tried to raise an objection to the bench, at which the CJP ruled that they would be heard tomorrow.
The hearing of the case was adjourned till 11:30am on Wednesday.
