Presidential Reference and PTI, others’ pleas: Apex court assails majority judgement

ISLAMABAD: The Supreme Court Thursday said the majority judgment on Presidential Reference and the Pakistan Tehreek-e-Insaf and others’ petitions disregarded the steps enumerated and also nullified three separate jurisdictions unequivocally stipulated in Article 63A of the Constitution.

A five-judge bench, headed by Chief Justice Qazi Faez Isa, on Thursday, released detailed reasoning of its short order passed on October 3, 2024, where the court allowing the review petitions of the Supreme Court Bar Association and others, unanimously, set aside the SC’s majority judgment.

A five-judge bench, headed by Chief Justice Umar Ata Bandial, and comprised Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Muneeb Akhtar, and Justice Jamal Khan Mandokhel, on May 17, 2022, by majority of 3 to 2 had held that the vote of any member of a Parliamentary Party in a House cast contrary to any direction in terms of para (b) of clause (1) of Article 63A cannot be counted and must be disregarded.

Justice Mazhar Alam and Justice Jamal Khan had dissented, and rendered opinion that Article 63A of the Constitution is a complete code in itself, which provides a comprehensive procedure regarding defection of a member of the Parliament and consequences thereof.

The 23-page judgment authored by CJP Faez said; “The clearly enumerated steps in Article 63A of the Constitution were disregarded and the judges (in majority) also nullified three separate jurisdictions unequivocally stipulated in Article 63A, which were: (a) the jurisdiction of the Party Head who may or may not issue the declaration of defection, (b) the jurisdiction of the Election Commission to decide the matter of defection and (c) the appellate jurisdiction of the Supreme Court.” “The majority did what was not permissible. Neither a court nor a judge can take away jurisdiction given by the law, let alone that which is conferred by the Constitution,” it added.

The judgment also said that the decisions of the larger Benches of the Supreme Court, including the decision of the Full Court (comprising of 17 judges) in the case of District Bar Association, Rawalpindi v Federation of Pakistan (PLD 2015 Supreme Court 401), wherein, Article 63A was considered was also disregarded by the said three judges.

The judgment noted that in Wukala Mahaz Barai Tahafaz Dastoor v Federation of Pakistan (PLD 1998 Supreme Court 1263) “Article 63A was held to be intra vires the Constitution”. The three judges could not have invalidated the provisions of Article 63A but they effectively did so. Justice Faez judgment noted that the language of Article 63A was “simple, clear and unambiguous” and was patently self-executory. It did not require interpreting, however, this was done and in its place a new Article emerged.

“The majority’s judgment has opened the way to transform the leader of a political party into a dictator, simply because the party’s leader can never be challenged. The words and the language used in the Constitution, its placement and context was overlooked by the three judges. The majority’s judgment substituted its wisdom with that of the makers of the Constitution, and adopted a course not followed anywhere in the world.”

The judgment noted that Dr Arif Alvi filed a reference before the SC, did not attach, nor refer to, any decision/resolution of the Cabinet nor the advice of the prime minister authorising its filing.

The reference was filed on 21st March 2022 and, on the same very day, it was numbered as Reference No 1 of 2022. It did not disclose that a resolution seeking a vote of no-confidence had been submitted in the National Assembly on 8 March 2022 against the then Prime Minister Imran Khan.

The judgment noted that Question 2 of Reference was premised on President Alvi’s personal opinion as it invited the SC “to exclude such tainted votes from the vote count.” Instead of seeking an opinion he had already determined that if votes were cast against the then prime minister by any member of Imran Khan’s Pakistan Tehreek-i-Insaf (‘PTI’) they would be tainted votes. Having made this determination, the president followed it up with a direction to the SC on what it should do.

Question 3 began by pontificating, that members who “did not hear the voice of his conscience”, and did not resign should no longer be treated as “sagacious, righteous, non-profligate, honest and amen” (which was the language of Article 62(1) of the Constitution), and then proceeded to instruct the SC to state that such an MNA “stands disqualified for life.”

Question 4 combined medical zeal with moralism and asked the SC to suggest legislative “measures” to “eradicate the cancerous practice of defection”.

President Alvi instead of seeking an opinion on questions of law expounded what he considered to be a moral issue, gave his own opinion and wanted this Court to concur with it.

The judgment said that a five-judge bench (headed by CJP Bandial) by majority of 3 – 2 passed a short order on 17 May 2022, while its detailed “judgment” was issued after nearly five months on 14 October 2022. The Supreme Court Bar Association on June 23rd 2022 had sought a review of the majority’s short order and the majority’s judgment. The court noted that CRP was filed over 27 months ago on 23 June 2022; therefore, to allege that it was hurriedly fixed is completely baseless.

An opinion is also not executable, however, an order passed by the SC (on a petition filed under Article 184(3) of the Constitution) is binding (Article 189 of the Constitution), and it is also executable. Therefore, if a decision (in terms of Article 189) contradicts this Court’s opinion (under Article 186) this Court’s decision (and not the opinion) will prevail.

Copyright Business Recorder, 2024