ISLAMABAD—After much delay and after Justice Munib Akhtar and senior puisne judge Justice Syed Mansoor Ali Shah both declined to sit on the larger bench, the Supreme Court finally started hearing the Supreme Court Bar Association’s (SCBA) review petition against the May 17, 2022, short order on the defection clause under Article 63A.
Chief Justice of Pakistan (CJP) Qazi Faez Isa called a meeting of the three-judge committee under the Supreme Court (Practice and Procedure) Ordinance early on Tuesday morning to consider Justice Syed Mansoor Ali Shah’s name after Justice Munib Akhtar reiterated his stance of not sitting on the bench, despite a request by the court.
Justice Mansoor’s secretary, Sadaqat Hussain, was contacted after he failed to show up for the meeting. The judge, according to the secretary, would not be sitting on the bench or attending the meeting. Justice Naeem Akhtar Afghan was consequently added to the bench.
Justice Afghan volunteered to handle the case, while Justice Shah, following Justice Akhtar, also declined to join the larger bench.
“Unification of constitutional domains”
The CJP questioned how two constitutional authorities could be combined and raised questions about the previous larger bench’s ruling on the presidential reference throughout the hearing. The CJP was referring to the decision of the bigger bench to consider the petition under Article 184(3) of the Constitution and the presidential recommendation under Article 186 (advisory jurisdiction).
The CJP questioned, “Are these jurisdictions different or the same; how could they be clubbed together?” and clarified that while Article 184(3) gave the apex court jurisdiction under Article 199 for the enforcement of fundamental rights, the court was supposed to give its opinion under presidential references.
The Chief Justice pointed out that although the president could not be charged with contempt for failing to execute the court’s ruling under the presidential reference, the same punishment may be applied for failing to carry out the president’s directives under Article 184(3) of the Constitution. He was taken aback by the PTI’s simultaneous movement of the petition and the reference.
The Supreme Court ruled by a majority of three to two on May 17, 2022, that Article 63A guaranteed the fundamental rights of a parliamentary party rather than those of an individual member, and that vote cast against party lines should not be taken into account.
“The Constitution was rewritten.”
The CJP questioned whether the four questions that SCBA President Shahzad Shaukat read aloud were loaded or general inquiries that former president Dr. Arif Alvi had submitted to the Supreme Court through the presidential reference.
The attorney proceeded through each of the four questions one by one and read aloud the court’s ruling, emphasizing that the majority judgment went on to rewrite the constitution in its opinion. The attorney cited several rulings to support his claim that Article 63A of the Constitution was a completely legitimate item of legislation in earlier rulings.
The federal government’s additional attorney general (AAG), Chaudhry Aamir Rehman, refuted the opinion on the presidential reference and clarified that the party leader had the final say about disqualification.
The CJP made the observation that Article 95 (the no-confidence motion) of the Constitution would be nullified if a vote against the party line was not going to be counted in accordance with the opinion. He inquired further as to why ballots were being cast in the event that they would not be tallied. He noted that the party is now permanently bound to the whims of the party chairman as a result of the ruling.
He noted that the issue of conscientious objector may be decided upon, but how would one measure it? In order to support his argument, the CJP also brought up the United Kingdom, whose party members had ousted multiple prime leaders.
However, the Supreme Court instructed the lawyers to prepare for the next hearing by bringing up relevant examples from the UK, USA, Canada, and Australia, particularly about how party members acted when they disagreed with the leader of the party.
Additionally, the court denied Syed Ali Zafar’s plea for notice on behalf of Imran Khan, stating that the matter was well publicized and that neither adversarial proceedings nor any individual’s rights had been impacted.
The CJP noted that because he had submitted the reference, former President Dr. Arif Alvi could participate in the hearings if it is convenient for him. The court would also consider the requests of anyone wishing to support the court.
Ali Zafar attempted to object to the bench’s makeup, but the court denied him permission, stating that the matter will be considered when it was his turn.
