The Supreme Court resumed hearings on Tuesday for a petition seeking a review of its 2022 decision regarding Article 63-A of the Constitution, which relates to defection laws.
The review petition was filed by the Supreme Court Bar Association (SCBA) and was initially scheduled to be heard by a five-member bench, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa. The bench also included Justices Munib Akhtar, Aminuddin Khan, Jamal Khan Mandokhail, and Mazhar Alam Khan Miankhel.
Article 63-A, introduced into the Constitution in 2010, was designed to ensure that lawmakers from political parties vote according to their party’s official stance on key issues, such as electing the Prime Minister or Chief Minister, casting a no-confidence vote, or voting on a constitutional amendment.
In its 2022 verdict, the Supreme Court ruled that any votes cast against the party line in such cases should not be counted.
However, on Monday, Justice Munib Akhtar declined to hear the review petition, raising concerns about the inclusion of ad hoc judge Justice Mazhar Alam Khan Miankhel on the bench.
In a letter, Justice Akhtar clarified that his decision was not a recusal but expressed concern about the composition of the bench. He also raised an objection to the case being heard by four judges instead of the original five-member bench.
CJP Isa assured that he would attempt to resolve the issue with Justice Akhtar. If the latter maintained his stance, the bench would be reconstituted. As a result, a meeting of the bench formation committee was held on Tuesday morning to decide on a fifth judge for the case.
During the meeting, CJP Isa suggested appointing Justice Mansoor Ali Shah, the senior puisne judge and a member of the committee.
However, Justice Shah declined to participate, as noted in the meeting minutes. Consequently, the committee decided to appoint Justice Naeem Akhtar Afghan to the bench, noting that his schedule would allow him to join the proceedings without disrupting other work.
Justice Akhtar’s decision to step away from the review case followed his removal from the bench-formation committee due to recent amendments that gave the CJP the authority to select any judge as the committee’s third member.
Supreme Court’s 2022 Ruling on Article 63-A
In its May 17, 2022, ruling, the Supreme Court held that any vote cast in defiance of the party’s directives under Article 63-A should not be counted. This article was included in the Constitution to prevent lawmakers from defecting or “floor-crossing” during key votes. If a lawmaker votes against party instructions in matters such as the election of a Prime Minister or Chief Minister, a no-confidence vote, or a money or constitutional bill, the party head may declare the member as defected, leading to their disqualification and removal from the Assembly.
The SCBA’s review petition, however, argues that the court’s interpretation of Article 63-A essentially rewrites the Constitution. The petition contends that the framers of the Constitution intended to disregard votes from defecting lawmakers only as a temporary measure to ensure political stability during the early years of the Constitution’s implementation.
The SCBA further argues that the Supreme Court’s ruling imposes an overly rigid interpretation of Article 63-A, which contradicts the principle of interpreting the Constitution according to its clear and express language. The petition calls for a reconsideration of the court’s stance to prevent any additional meaning from being read into the constitutional provisions.
This case continues to draw attention, as it could have significant implications for the powers of political parties and the functioning of parliamentary democracy in Pakistan.
