Five-judge bench announces unanimous verdict. Top court nullifies its 2022 verdict regarding defection clause under Article 63-A of the Constitution. Chief Justice rejects PTI lawyer’s request to allow Imran to address court in person. PTI has decided to withdraw from ongoing proceedings, Ali Zafar tells court.
ISLAMABAD - The Supreme Court of Pakistan on Thursday accepted review petitions of Supreme Court Bar Association and others against its 2022 verdict regarding defection clause under Article 63-A of the Constitution and unanimously set aside the previous SC majority judgment. The court ruled that the defecting lawmakers’ votes should indeed be counted. The detailed judgment will be issued later on.
A five-member bench of the apex court headed by Chief Justice Qazi Faez Isa and comprising Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Naeem Akhtar Afghan, and Justice Mazhar Alam Khan Miankhel conducted hearing of the review petitions. The CJP said he would announce the judgment later on.
A day ago (2nd October) the bench had rejected all the objections raised by Barrister Ali Zafar, who represented Pakistan Tehreek-e-Insaf founder Imran Khan.
Zafar had submitted that the Committee under Supreme Court (Practice and Procedure) Act, 2023 is not properly constituted as both the most senior judges – Justice Syed Mansoor Ali Shah and Justice Munib Akhtar – have not been included in it, therefore is coram non judice, and proceeding before it would be unlawful. Zafar raised objection that before hearing of review petitions the notices are issued to the respondents, which has not been done in the instant matter. He argued that the proceeding on review petitions can’t be held without the author judge (Justice Munib). Justice Jamal said that the judge was requested join the bench, but he expressed inability. He said that not hearing petition as per Section 7 of SC Practice Procedure Act is the violation of judge’s oath.
Zafar also contended that the review petitions of the Supreme Court Bar Association (SCBA) is time barred. The chief justice told him that the review is filed against the judgment of the Court and not the order. He said that the detailed reasoning was announced almost one year after the short order.
However, the bench allowed Barrister Zafar to take instruction from Imran Khan in Adiala jai. Zafar repeatedly requested that sometime be granted so that he can consult his client before making submission on the merit of the case. The Court asked the Additional Attorney General Aamir Rehman to facilitate his meeting with Imran Khan in jail tomorrow (Thursday) at 10:00 a.m.
At the onset of the proceeding, Barrister Ali Zafar informed that as per the court order he met with Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan in Adiala Jail in the presence of police officer, adding that it was not a lawyer-client meeting, in the presence of police.
Zafar submitted his client likes to address the court in person, and wanted video-link facility be provided.
The Chief Justice reacting to Zafar submission said that on the first day he told the court that he wanted to consult his client. “Now you are telling us he (Imran) wants to address the court,” Justice Faez said.
Ali Zafar said that his client has some issues with the bench members, and if the court allows him to address then he would proceed further. The Chief Justice remarked; “You are making unreasonable and unjustifiable demands.” The case is not about the grievances of your client, but a constitutional matter. He further said that it is the lawyer’s duty to assist the Court.
The Chief Justice asked him to argue on the merit of the case, and inquired how much time is required by him? Zafar replied he would be out of the Court in seven minutes.
The Chief Justice stated that they were hearing the review, therefore, can’t look forward or present, but we have to look to the case. The review is tied to the judgment.
Zafar stated that if the court listens to him then he would take only seven minutes. The chief justice remarked that if you would confine your argument only to the case then they were ready to give him seven hours, but don’t discuss politics here.
The counsel submitted that today in all newspapers there is headline of one political party’s leader that after 25th October it would be very difficult for the government to pass constitutional amendments. The people link the judgment on Article 63-A with the constitutional package, which the government intends to table in the parliament.
He further said that there are some provisions in the package to enhance the judges’ retirement age and establish a constitutional court. If you (bench) allow the horse-trading, then it would benefit the government in pursuing its plan.
The chief justice, objecting to Zafar statement, said; “This is loaded statement”. He warned; “If you are saying this then they would issue him contempt of court notice. He said: “If you will make mockery of court then we are not giving you permission to say anything.”
Justice Isa said that if they (judges) define horse-trading then it would embarrass you. One provincial government was toppled through horse-trading. He said what happened in Senate elections, CCTV cameras were installed in the Senate. He also said that they (PTI) should also remember what happened to Mir Hasil Khan Bizenjo’s election. Justice Faez reminded Zafar that though this reference was pending in the Supreme Court despite that horse-trading witnessed in Upper House’s election.
He said that the allegations are without a shred of evidence that this case is linked with the government constitutional bill. He questioned why they (PTI) are afraid of judgment on review petition?
Zafar said that the majority judgment saved the nation from horse-trading, but now the SCBA again wanted to open door for horse-trading. He told Imran Khan has objection on the bench composition. In his opinion the bench is not properly constituted. “My client instructions are not to proceed before this bench unless the two members voluntarily withdraw from it,” Zafar said.
He said that the PTI has decided to withdraw from the ongoing proceedings and informed the court that the party wished to step aside from the judicial process, noting that former PTI chairman Imran Khan wanted to appear in person. Nevertheless, the court appointed Ali Zafar as a judicial assistant to aid the court in the hearing of the case.
APP ads: Chief Justice of Pakistan said that one may be unhappy with the Constitution or the death penalty, but everyone was bound to implement it. “Can a judge take an oath and saying that he is not happy with this provision of the Constitution,” he questioned.
The CJP said that the head of the party had the authority to give or not to give a declaration of defection to someone. The members of the assembly or political parties were subordinate to their leader, not the judges, he said.
On the query of the bench, Farooq H. Naek said that party elections were held under the Election Act, in which the decision of the party chief was taken.
Chief Justice Qazi Faez Isa said that the decision of Article 63 A was a majority decision by the margin of one judge. He questioned that if the opinion of one judge was heavy on the parliament.
He asked that whether the court should send the matter to the President to decide which opinion he agreed with.
Additional Attorney General Aamir Rehman opposed the option and said that the constitutional petitions had also been dealt with the reference. The matter of dealing with the constitutional petitions could not be sent to the President, he added.
The chief justice said that if Article 63-A was clear, then what was the need for its interpretation. Appeals of disaffected members also have to come to the Supreme Court, and if the court decision leads to disqualification, the appeal will be ineffective, he remarked.
The Additional Attorney General said that the decision on Article 63A was full of contradictions. He said that on the one hand it said that vote was a fundamental right but at the same time this right was abolished on the direction of the party.
