The Supreme Court has unanimously accepted the review petition against the court's interpretation of Article 63A, and withdrawn its earlier decision on the constitutional article.
"The 2022 majority judgment regarding Article 63A is set aside," the court ruled.
Earlier, at the start of the proceedings, Pakistan Tehreek-e-Insaf (PTI) Founder Imran Khan's lawyer Ali Zafar has said in his arguments in the Supreme Court that the government is proposing amendments to the Constitution, and it is feared the court will allow horse-trading.
A five-member Supreme Court bench headed by Chief Justice of Pakistan Qazi Faez Isa is hearing the Article 63A interpretation review case. The bench also includes Justice Aminuddin Khan, Justice Jamal Khan Mandokhel, Justice Naeem Akhtar Afghan and Justice Mazhar Alam Miankhel.
At the outset of the hearing, Barrister Ali Zafar said his client, Imran Khan, wants to address the court personally, adding that the former premier wants to argue the case through a video link. When the CJP asked him to start his arguments on the case, the counsel refused, saying first Imran Khan will make his submissions to the court, and then he will present the arguments.
He argued that his client had some objections to the bench, and if Imran Khan was not allowed to appear on video link, he has asked to put some things before the court. The CJP reminded him that he was not only a lawyer for his client, but also an officer of the court.
Justice Jamal Mandokhel said they had also been lawyers, but did not follow everything their client said, adding that they followed only what was according to the law.
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Ali Zafar said that if Imran Khan was not allowed to speak, then he will not appear, adding that the government wants to bring some amendments. The CJP said he was making political statements so that it makes headlines the next day. The counsel said that even today's newspaper says the constitutional amendment is mandatory before October 25.
The PTI lawyer also claimed that the government wants to bring a constitutional amendment and there is an impression that the court will allow horse-trading. At this, the chief justice said the lawyer could be charged with contempt of court. He further said the court respected him, so he should also respect them.
"You are making a very loaded statement by mentioning horse-trading. If we tell you what horse-trading if, you'll be embarrassed."
PTI withdraws from court proceedings
Ali Zafar said that the Article 63A verdict stops horse-trading. Justice Mandokhel remarked that the court had given its opinion on Article 63A, not a decision. Imran Khan's lawyer Ali Zafar boycotted the proceedings, saying the PTI founder has said the composition of the bench is not right, therefore he will not be a part of it.
Supreme Court appoints Ali Zafar judicial assistant
Ali Zafar told the chief justice that if he hears the case, there will be a conflict of interest. The CJP noted that neither the court will listen to what the lawyer was saying nor will it make it part of the record.
The court then appointed Ali Zafar a judicial assistant, after which the counsel said his client, Imran Khan, maintains that the bench is not legal, so there is no point in going ahead. The CJP asked the lawyer to continue his arguments, asking him not to be afraid of a decision, as the court can even reject the review application.
Barrister Ali Zafar told the court that the president had asked for an opinion regarding Article 63A, and a review cannot be filed against this opinion. He added that only the president can approach the court if he needed further clarification. CJP Isa said that the PTI had also filed an application in this case. Ali Zafar responded that they had asked for lifetime disqualification over floor crossing, but the court had said they could legislate on it in parliament.
The CJP inquired whether the majority of the judges who gave the decision on Article 63A interpretation wrote the word opinion or used the word decision. Barrister Ali Zafar said that it is for this court to decide whether it was an opinion or a decision. The CJP asked if this meant he supported the review plea to the extent that the word judgment should be replaced by opinion.
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Justice Mandokhel observed that he and Justice Miankhel were also part of the earlier bench, but no objection had been raised against them. Barrister Zafar responded that the objection was to the bench composition and not an individual. He further remarked that the court disposed of the constitutional petitions saying that it had given his opinion on the reference.
“A review petition has limited jurisdiction,” he pointed out.
The CJP remarked that one could be unhappy with the Constitution or the death penalty, but everyone was bound to implement decisions. “Can a judge take oath and say that he is not happy with a certain provision of the Constitution?” he questioned, adding that every dictator says he will eliminate all the corrupt lawmakers and parliament.
“Everyone joins the military regime, and then they talk about democracy,” CJP Isa remarked.
Ali Zafar said the Supreme Court had advanced the principle of right to life enshrined in the Constitution. Advancing the principle of a fundamental right is not rewriting the Constitution, he noted.
The lawyer argued that the constitution lays out the right to form a political party, but doesn’t say the party can also contest elections. “Courts interpreted the constitution and declared political parties eligible for elections.”
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The CJP asked how a single judge can determine whether a member has defected, as this authority belonged to the parliamentary party leader. Justice Mandokhel remarked that the right to vote belongs to a member of parliament. “How can this right be called the right of a political party?” he asked.
PPP lawyer Farooq H Naik commented that party elections are held under the Elections Act and the party chief makes decision in it.
Ali Zafar said a parliamentary party gives instructions to its assembly members to vote or not. The party leader can send a reference of disqualification against a member who doesn’t follow the instructions of the parliamentary party.
“According to this, voting against the party is a suicide attack,” CJP Isa remarked, adding that neither the vote will be counted nor will the member retain his assembly seat. “If one does not agree with the party policy, they can resign.”
It is hoped that a seat may be saved and the member not de-seated. Ali Zafar further said that the court had declared that no one will be allowed to take unfair advantage of their right to vote.
“Is this interpretation democratic? Judges are not elected, they must remain within their jurisdiction,” the CJP remarked, stressing that the lawyer was talking completely against democracy.
The chief justice also said that according to history, when a martial law is imposed, everyone becomes a rubber stamp.
Justice Naeem Akhtar Afghan asked why the PTI didn’t legislate against non-counting of votes during its tenure. “The no confidence motion was about to come and that’s when a reference was filed in the Supreme Court,” he added. “At that time, an attempt was made to use the Supreme Court instead of parliament.”
Also Read: Justice Muneeb questions CJP heading Article 63A review bench
Justice Afghan said some judges approached the chief justice and a suo motu notice was taken.
“Can I get a challan if I even think about breaking the red signal?” asked the chief justice, recalling that the Article 63A decision was a majority decision with a margin of only one judge.
“Is one person's dominant on the entire elected parliament?” the CJP asked. “Democracy continued to be derailed because this court continued to uphold wrongful actions.”
Ali Zafar remarked that if parliament does not like this interpretation, it can enact another legislation.
Justice Afghan recalled that just yesterday it was threatened to rule against the PTI, asking if this is how decisions will be sought. Statements do the rounds on social media that a judge has done this or that. “Make institutions important, not personalities,” Justice Afghan noted.
The chief justice stressed that the court was only asking them to sit together and do whatever they wanted.
“I am only saying that you should also sit together and make judges' rules, it will become peaceful,” Ali Zafar stated.
Justice Mandokhel remarked that the party should have condemned whatever happened in court yesterday. “You should at least express your dissociation,” he said.
The counsel said to the chief justice that he would suggest all judges sit together. The CJP responded that he would also give a free advice, which was that all the political parties should sit together and settle the issues.
“There is no clash among the judges. It is not that the institution has crumbled,” CJP Isa remarked.
On Ali Zafar’s way out of the courtroom, the CJP complimented him he had argued in a dignified manner. “Mr Ali Zafar, we will consider your advice,” he added.
“There is no law in any democratic country in the world that doesn’t count a vote,” the CJP remarks, adding that hopefully, “one day we will also become a mature democracy”.
