ISLAMABAD: The Supreme Court of Pakistan (SCP) has accepted review petitions against its decision on Article 63-A, overturning the earlier ruling that dissident members’ votes should not be counted.
A five-member larger bench of the Apex Court, headed by Chief Justice Qazi Faez Isa, heard the review appeal on Article 63-A. The bench issued a short order after hearing the arguments of the parties involved.
The court “unanimously” declared that the votes of dissenting members would be counted in cases of no-confidence motions.
It is worth recalling that in its May 17, 2022 verdict, the SCP had ruled that votes cast in opposition to parliamentary party lines under Article 63-A should not be counted. The penalty for violating Article 63-A was the disqualification of the defecting lawmaker.
Earlier, Pakistan Tehreek-e-Insaf (PTI) counsel Barrister Ali Zafar boycotted the hearing on the review plea regarding Article 63-A following an exchange with Chief Justice of Pakistan (CJP) Qazi Faez Isa.
Barrister Zafar refused to continue his arguments when his client, PTI founder Imran Khan, was not permitted to present submissions in court. The Chief Justice then appointed Zafar as a judicial assistant in the case.
At the start of proceedings, Barrister Ali quoted the PTI founder as saying the bench was not legal, thus there was no point in continuing. This statement irritated the CJP, who instructed Zafar not to mention his leader.
Barrister Ali responded by claiming that the government was introducing constitutional amendments and a judicial package for the court. “If you decide this case, it will amount to permitting horse trading,” he remarked.
At this point, the CJP warned him against “crossing the line,” stating, “We can issue you a contempt of court notice. You are insulting [us] before the verdict.”
“You are insulting us before the judgment. We cannot allow such rhetoric,” the CJP added.
Justice Jamal Mandokhail questioned how he could claim the court was permitting horse trading.
Chief Justice Isa said, “We respect you, so you should respect us. Your statement is harsh. If we explain what horse trading is, you will be embarrassed.”
Justice Mandokhail further asked if the presidential reference was not a decision but an opinion, how was it being implemented. He questioned if the president had directed the toppling of a government following the opinion.
The Chief Justice reminded Barrister Ali of what Hasil Bizenjo had said about a Senate election. “Cameras were installed in an institution like the Senate during the election. Mr. Ali Zafar, why are you afraid of a decision?”
The Chief Justice asked him to argue the case, noting that the revision petition could be rejected.
Ali Zafar argued that the president had requested an opinion on Article 63-A. A review cannot be filed against an opinion; only the President of Pakistan could have sought further clarification.
The CJP pointed out that Ali Zafar had also filed an application in this case. Barrister Ali responded that he had requested lifetime disqualification for floor crossing.
CJP Isa commented that parliament could legislate on the issue.
The Chief Justice also asked whether the majority of judges who ruled on Article 63-A had used the term “opinion” or “decision.”
Ali replied that it was up to the court to determine whether it was an opinion or a decision.
The Chief Justice remarked that Ali seemed to support a revision to the extent that “decision” should be replaced by “opinion.”
Justice Mandokhail pointed out that he and Justice Miankhel had also been part of the earlier bench, and no objection had been raised against them. Ali Zafar responded that the objection was not personal but related to the composition of the bench.
Barrister Ali further argued that the Supreme Court Bar’s petition was related to voting in the no-confidence motion, and that the court had mistakenly combined the presidential reference and constitutional petitions, disposing of the latter by stating it had given an opinion on the reference.
“Revision jurisdiction is limited,” he added.
Chief Justice Isa remarked that whether one liked it or not, judges are bound to act under the constitution, even to implement the death penalty. “Can a judge take an oath and say they are not happy with a certain provision of the constitution?”
The CJP noted that every dictator claims to eliminate corruption and dissolve assemblies, yet everyone eventually joins the military regime and then starts discussing democracy.
Ali Zafar contended that advocating a fundamental right does not mean rewriting the constitution.
He explained that while the constitution provides for the right to form a political party, it does not explicitly state that parties can contest elections. The courts interpreted this right, and parliament later legislated on it.
In this case, the court had interpreted a point, and parliament later legislated on it, which is not considered rewriting the constitution.
The Chief Justice remarked that democracy has been repeatedly derailed because the court kept validating wrongful actions. Justice Afghan noted that the court had been challenged to rule against the PTI, questioning whether such challenges are a proper way to influence a decision.
Justice Afghan also commented on social media posts targeting judges, stating that institutions, not personalities, are important.
Ali Zafar indicated that he could not ignore what was happening outside, possibly alluding to the country’s political situation. The CJP responded by stating that he could explain what was happening inside the court—where nothing was amiss.
Barrister Ali suggested that all judges should come together to create unified rules.
Chief Justice Isa stressed that there was no rift among the judges and that the institution of the Supreme Court was intact.
The CJP added, “You gave us free advice, now we’ll give you some free advice. All political parties should come together and resolve their issues. It will then be said that you advised them to sit together. We are simply asking that they sit together and resolve matters.”
Concluding his arguments, Barrister Ali clarified that after 11:30 am, he had argued as a judicial assistant and not as PTI’s counsel.
People’s Party lawyer Farooq H. Naik argued that floor-crossing is permitted in Britain as it is considered a personal freedom. He noted that the practice is also allowed in the US and Canada, though in India, there is disqualification for floor-crossing.
He pointed out that no country in the world has a law or principle that dissident votes should not be counted.
Read more: Nothing Happens Behind Closed Doors in SCP Any More: CJP Faez Isa
