A five-member bench of the Supreme Court, led by Chief Justice of Pakistan (CJP) Qazi Faez Isa, on Thursday unanimously annulled a 2022 verdict on the interpretation of Article 63A of the Constitution, which barred lawmakers from voting against party lines in Parliament by ruling such votes would not be counted.
Filed by the Supreme Court Bar Association (SCBA), the review petition had argued that the apex court’s interpretation was against the Constitution and effectively to “interference” in it. It had remained pending hearing before the apex court since June 2022, before being placed on the cause list last month.
Announcing the short order on Thursday, the CJP remarked the bench had unanimously approved the review petition and annulled the 2022 ruling, adding detailed reasons would be provided later.
Case history
In its May 17, 2022 verdict, the apex court had declared that votes cast against parliamentary party lines in four instances outlined in Article 63A—elections of prime minister and chief minister; votes of confidence or no-confidence; constitutional amendments; finance bills—cannot be counted. Additionally, anyone who voted in such a manner would invite consequences in the form of disqualification from the National Assembly at the behest of the parliamentary leader. The review ruling allows for the votes to be counted, with penalties following only after such an action is taken.
The 2022 split ruling, with 3 judges backing not counting votes and 2 dissenting, came about due to a presidential reference filed by then-president Arif Alvi. Then-chief justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar were the majority verdict authors, while Justices Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail dissented, observing the interpretation amounted to “rewriting or reading into the Constitution.” The dissenting view was supported by most lawyers, with the SCBA filing a review petition.
The five-member bench formed to hear the review plea had replaced Justice Munib Akhtar with Justice Naeem Akhtar Afghan, as the former had refused to participate in proceedings until the legitimacy of an ordinance amending the Supreme Court (Practice and Procedure) Act, 2023, was determined. Following the promulgation of the ordinance, the CJP had replaced Justice Akhtar with Justice Aminuddin Khan on the judges’ committee. Senior puisne Justice Mansoor Ali Shah had refused to sit on the bench for similar reasons.
Taking up the case on Tuesday, the CJP had questioned the original ruling, observing it had effectively rendered any vote of no-confidence ineffective, as any lawmaker who wished to vote against party lines would not have their vote counted. The bench had similarly, on Wednesday, dismissed objections raised by PTI founder Imran Khan’s counsel, Ali Zafar, on the bench’s constitution in light of the ordinance.
In today’s proceedings, Zafar said his client had directed him to boycott the case if he [Khan] was not permitted to appear via video-link. To this, the CJP Isa questioned if he could still assist the court, which Zafar agreed to.
Prior to announcing his boycott, Zafar argued that the government was planning to introduce some constitutional amendments before Oct. 25 and any ruling annulling the Supreme Court’s interpretation could benefit it. At this point, Khan’s lawyer was censured for “speaking about politics,” but he continued with his assertion that any annulment would give the impression that horse-trading was being allowed.
At this, the CJP warned the court could initiate contempt proceedings against Zafar for his assertion. “By claiming horse-trading, you are making a huge statement,” observed CJP Isa. “What is horse-trading? You would be embarrassed if we told you,” he added.
Zafar then announced a boycott of the proceedings, maintaining his client believed the bench was not constituted correctly. He also argued that if the CJP was part of the bench deciding on the review petition, it would be a “conflict of interest.”