Justice Afghan included in five-member bench after Justice Munib’s non-availability.

ISLAMABAD   -  Chief Justice of Pakistan Justice Qazi Faez Isa Tuesday said that now nothing happens behind closed doors in Supreme Court any more.

“These days, nothing is happening behind closed doors in the Supreme Court. The larger bench is now complete, and we can begin the proceedings,” he stated this heading a five-member bench that heard the review petition against the majority judgment on Article 63A of the Constitution. The bench comprised Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Mazhar Alam Khan Miankhel, and Justice Naeem Akhtar Afghan.

Chief Justice Isa questioned the contradiction in the rulings that suggest a lawmaker should be de-seated upon defection while also leaving it to Parliament to decide the duration of the disqualification.

“If the Constitution clearly states that a disqualified member will be de-seated, then that is the action that must be followed,” Isa said, highlighting that there should be no ambiguity in implementing the Constitution’s provisions.

The lawyers were asked to assist whether the Presidential Reference under Article 186 of the Constitution for seeking court opinion on a constitutional matter, and petition under Article 184(3) could be clubbed and heard and decided together. It also said that they will hear everyone who wants to assist the court.

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

The Chief Justice 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 9 am on Tuesday (1st October, 2024) to consider his lordship substitute.

The Chief Justice stated; “I proposed that Justice Syed Mansoor Ali Shah to 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 no. 1 work would conclude at 11 am and work of no other bench will be disturbed.

At the outset, SCBA President Shahzad Shaukat presented his arguments regarding the background and legal questions raised in the case. He told the court that there was a presidential reference in this case as well as applications under Article 184(3). To this, 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 Shaukat 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,” Shaukat recalled. The chief justice asked if the court’s previous opinion had genuinely addressed the president’s questions, to which Shaukat answered in the negative.

CJP Isa further asked if the question related to ethics in the reference was genuine. Shahzad Shaukat 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.

Barrister Ali Zafar contended that the procedure for hearing of 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 instructions. The Chief Justice remarked that 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 what the party has position, as they are dealing with pure legal issue. He said that the bench had allowed his petition and now it upto him whether he likes to represent the party or Imran Khan.

Zafar then said that 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. Later, the bench adjourned the case till today.