ISLAMABAD: The Supreme Court Bar Association (SCBA) has sought a review of the apex court’s order dated 17-05-22 on the interpretation of Article 63A of the Constitution.

The SCBA President, Ahsan Bhoon, on Thursday, filed the review petition under Article 188 of the Constitution and prayed to be recalled the order.

It said the interpretation of Article 63A of the Constitution is not in accord with the letter and spirit as well as the system of parliamentary democracy established by the Constitution.

In reaching the conclusion that the vote of any member of a parliamentary party in a House that is cast contrary to any direction issued by the latter in terms of para (b) of clause (1) of Article 63A cannot be counted and must be disregarded the Court escaped the historical background and evolution of Article 63A of the Constitution.

The SCBA submitted that the interpretation of Article 63A adopted by this August Court in paragraphs 1 to 3 of the Order amounts to rewriting/ reading into the Constitution.

The apex court, in the past held on various occasions that the Constitution is to be interpreted strictly in accordance with the clear and express language thereof. It has also been held that there is no room to supply additional meaning to constitutional provisions where there is no ambiguity in the language of the Constitution.

The petition said that by holding that the votes of defecting members must be disregarded and not counted, this Court has ignored a principle of constitutional interpretation that has consistently been followed and upheld by it.

He submitted that the interpretation of Article 17 of the Constitution adopted in paragraphs 1 and 2 of the Order also merits reconsideration and review. It said that Article 17(2) of the Constitution, first and foremost, guarantees and protects the rights of citizens to participate in the constitutional democracy through their representatives.

It is submitted that if there is any conflict between the rights of the political parties and the rights of the individual voter/ citizen, it is the latter that must prevail over the former.

This is not only consistent with the language of Article 17(2) which provides that “every citizen shall have the right to form associations” (emphasis supplied), but also with the spirit of the Constitution. The parliamentary form of government is one of the salient features of our Constitution.

The interpretation of Article 17(2) of the Constitution adopted by this August Court in paragraphs 1 and 2 of the Order is inconsistent with the cardinal principles which form the bedrock of our constitutional democracy.

It submitted that in the judgments in Miss Benazir Bhutto v. Federation of Pakistan and Mian Muhammad Nawaz Sharif v. President cases the Court held that the right enshrined in Article 17(2) includes the right of a political party to contest election and form governments.

“In doing so, the rights of individuals were extended to apply to political parties and were not made subservient to the rights of political parties. Thus, the finding that the rights of the collectivity (i.e., political party) prevails over the rights of the individual is not consistent with the jurisprudence of this Court. Be that as it may, the jurisprudence of this Court,” said the petition.

Copyright Business Recorder, 2022