Article 63A review plea: hearing adjourned as CJP says ruling may impact no-confidence motions

A five-member bench of the Supreme Court of Pakistan adjourned hearing appeals in the Article 63-A case on Tuesday, with Chief Justice Qazi Faez Isa expressing reservations about how no-confidence motions work if dissenting votes do not count.

The hearing of a petition seeking a review of the 2022 verdict on the defection clause under Article 63A of the Constitution resumed on Tuesday with Justice Naeem Akhtar Afghan replacing Justice Munib Akhtar.

On Monday, a five-judge bench, headed by Chief Justice Qazi Faez Isa and comprising Justice Munib Akhtar, Justice Amin ud Din Khan, Justice Jamal Khan Mandokhel and Justice Mazhar Alam Khan Miankhel, was supposed to resume hearing the review petition.

However, when the bench assembled, Justice Munib was absent. Justice Akhtar in a letter raised objection on the inclusion of Justice Alam in the bench.

He stated; “Justice (retd) Mazhar Alam, who currently attends sittings of the Court as an ad hoc judge in terms of Article 182. The reasons why it was considered necessary to so request Justice Mazhar (and another retired judge] are set out in the minutes of the meeting of the JCP held on 19-07-2024. … His inclusion in the bench to hear the CRP appears to be contrary to Article 182.”

The CJP adjourned the hearing till Tuesday (today), and said he would ask the judge to be a part of the bench as the review petition should be heard by a five-member bench as per the original case.

“The court will reconvene tomorrow (Tuesday) at 11:30 a.m., and if he (Justice Akhtar) does not want to sit on the bench then he will be replaced by another available judge.”

Defection law verdict: Justice Munib Akhtar skips hearing

The written order issued late in the evening on Mnday said; “Today Justice Munib Akhtar, headed Bench No III and conducted cases, and we were together in the Judges tea room. Therefore, we direct the Registrar to place before his lordship the instant order with the request to his lordship to join the Bench. However, if his lordship does not do so the Committee constituted under section 2 of the Supreme Court (Practice and Procedure) Act, 2023 is required to appoint another Judge in his place on the Bench.”

Supreme Court verdict

In 2022, the SC announced that parliamentarians cannot vote against their party policy, adding that the votes of dissident lawmakers will not be counted.

The court, issuing its verdict on the presidential reference that sought its interpretation of Article 63-A of the Constitution, which pertains to the disqualification of lawmakers over defection, said the “article concerned cannot be interpreted alone.”

The verdict by the top court was a 3-2 split decision, with a majority of the judges not allowing lawmakers to vote against the party line in four instances outlined under Article 63-A. These four instances are the election of a prime minister and chief minister; a vote of confidence or no-confidence; a Constitution amendment bill; and a money bill.

Later, the Supreme Court Bar Association’s (SCBA) requested the SC to direct all state functionaries to act strictly in accordance with the Constitution and the law, and ask them to restrain from acting in any manner detrimental to and unwarranted by the Constitution.

Article 63-A: SC decides to form larger bench

“The apex court’s opinion about not counting the dissident’s votes is against the Constitution and equal to interference in it,” the SCBA said.

Article 63-A

According to Article 63 (A) of the Constitution, a parliamentarian can be disqualified on grounds of defection if he votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, in relation to the election of the prime minister or chief minister; or a vote of confidence or a vote of no-confidence; or a money bill or a Constitution (amendment) bill“.

The Article says that the party head has to declare in writing that the MNA concerned has defected but before making the declaration, the party head will provide such member with an opportunity to show cause as to why such declaration may not be made against him.

After giving the member a chance to explain their reasons, the party head will forward the declaration to the speaker, who will forward it to the chief election commissioner (CEC).

The CEC will then have 30 days to confirm the declaration. If confirmed by the CEC, the member “shall cease to be a member of the House and his seat shall become vacant”.