ISLAMABAD: The counsel for Supreme Court Bar Association (SCBA) and political parties were directed to refer the cases regarding defection clause from the jurisprudence of India, UK, USA, Canada, and Australia.

The Federation and the Pakistan Peoples Party (PPP) supported the SCBA’s review petition against the majority judgment of a five-judge bench dated 17th May 2022 verdict on Article 63-A.

The majority judgment held that the vote of any member of a Parliamentary Party in a House that is cast contrary to any direction in terms of para (b) of clause (1) of Article 63-A cannot be counted and must be disregarded.

Defection law verdict: Justice Munib Akhtar skips hearing

A five-judge bench, headed by Chief Justice Qazi Faez Isa, and comprising Justice Amin ud Din Khan, Justice Jamal Khan Mandokhel, Justice Mazhar Alam Khan Miankhel, and Justice Naeem Akhtar Afghan, on Tuesday, heard the review petition.

The lawyers were asked to assist whether Presidential Reference under Article 186 of the Constitution, for seeking Court’s opinion on a constitutional matter, and petition under Article 184(3), on Supreme Court original jurisdiction, could be clubbed, heard and decided together? It also said they will hear everyone, including former President Arif Alvi, who had filed the Reference, if they want to assist the Court.

During the course of proceedings, the chief justice observed that Article 63-A verdict apparently intended to weaken no-confidence motions. He stated that now nothing happens behind closed doors in the Supreme Court any more.

The CJP informed that since Justice Munib Akhtar has not conceded to the request to take his place on the bench, a meeting of the Committee constituted under the Supreme Court (Practice and Procedure) Act, 2023 was convened at 9am on Tuesday (1st October, 2024) to consider his lordship’s substitute.

The chief justice stated; “I proposed that Justice Syed Mansoor Ali Shah be on the said bench.”

“The members waited for Justice Mansoor, however, his lordship did not attend the meeting, therefore, his SPS Sadaqat Hussain was contacted telephonically and he, after inquiring from Justice Mansoor stated that he will not be participating nor wants to be a member of the said bench.”

“Therefore, the Committee decided to appoint the second senior member of the bench on the Chief Justice’s bench namely Justice Naeem Akhtar Afghan on the bench as his lordship would be available since bench no1 work would conclude at 11 am and work of no other bench will be disturbed.”

Barrister Ali Zafar contended that the procedure for hearing a review petition is that first the notices are issued to all the concerned parties. He informed that he was representing only PTI founder Imran Khan, and needed time to take instruction.

The chief justice remarked it is a constitutional and legal matter, and what would his client tell him?

Zafar requested that the PTI should be issued notice, as it may have a different position.

The chief justice remarked that the Court is not concerned about what position the party has, as they are dealing with pure legal issues. He said the bench had allowed his petition and now it is up to him whether he likes to represent the party or Imran Khan.

Zafar then said he also filed an application that the review petitions are time barred. The chief justice said that actual time for filing review starts when the detailed judgment is announced.

The SC office was directed to check when the detailed reasoning was announced by the majority.

At the outset, SCBA President Shahzad Shaukat briefed about the background of the case. He told that on 8th March a motion for no-confidence against the then prime minister was moved in the National Assembly.

Imran Khan asked party workers to stage a protest outside Sindh House in Islamabad.

The ex-president SCBA Ahsan Bhoon on March 18, 2022 filed a petition before the Supreme Court, adding later President Arif Alvi filed a reference under Article 186 of the Constitution, and PTI filed petition under Article 184(3) in April, while the five-judge bench headed by ex-CJP Umar Ata Bandial passed an order on May 17, 2022.

Shahzad said Ahsan then filed a review petition against the short order on June 22, 2022, while the detailed reasoning was announced a year after the short order.

The CJP questioned how both are two separate jurisdictions and how a verdict could be delivered by combining the two. “Only an opinion can be given on a presidential reference, not a decision. Aren’t the two jurisdictions different? Was there a court order at that time on the reasons for combining the two cases? Only legal questions raised by the president are answered,” the CJP noted.

He added that if the opinion on the reference is not followed, the president cannot be tried for contempt. When the SCBA president reminded that the president at that time was Dr Arif Alvi, the CJP remarked that the government of the time was also a petitioner in the case as a government. “What legal questions were raised by the president?” he asked.

Shahzad told the court the president had raised four questions in the reference and sought an opinion on the aspect of cheating under Article 63A. He added that the court had said that Article 63A could not be seen in isolation and declared that political parties were important for democracy.

“The court declared that deviation from party policy is a cancer for political parties,” Shahzad recalled. The chief justice asked if the court’s previous opinion had genuinely addressed the president’s questions, to which, Shahzad answered in the negative.

CJP Faez further asked if the question related to ethics in the reference was genuine. Shahzad reminded that the court had declared the vote of a disaffected member would not be counted, adding that a question was related to the voice of conscience of a member also. “The decision sought to rewrite the constitution,” the senior lawyer observed. The case is adjourned until Wednesday (Oct 2).

Copyright Business Recorder, 2024