SC strikes down ruling on defection clause

In what appears to be a much-needed boost for a government to push through the much-hyped constitutional amendments with a two-thirds majority, the Supreme Court has unanimously accepted the review petitions against its verdict on defection clause under Article 63A and struck down its previous ruling, which deemed the vote of a parliamentarian uncounted if cast against the party line.

The five-member SC bench led 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 heard the review petitions on defection clause under Article 63A on Thursday.

At the outset, Pakistan Tehreek-e-Insaf (PTI) lawyer Barrister Ali Zafar submitted that PTI founder Imran Khan wanted to join the court proceedings. The CJP turned down the PTI lawyer's request and asked him to further the case proceedings. Barrister Zafar argued a proposed constitutional package is linked to Article 63A.

The CJ asked the PTI lawyer to avoid making political comments which make newspaper headlines. Barrister Zafar cited news reports stating the amendment is necessary till October 25. He added the government alliance wants to introduce constitutional amendment.

Barrister Zafar submitted that the PTI wanted to distance itself from the court proceedings. CJP Isa expressed disappointment, saying the court was eager to listen to him. However, the CJP requested him to become an amicus curiae in the case and inquired from the SC bar if it had any objection. When the SC bar president Shehzad Shaukat replied in the negative, the court appointed him as amicus curiae.

During the hearing, Barrister Zafar mentioned that the case involved 'conflict of interest', alleging, "You are allowing horse trading through this ruling."

The CJP cautioned him about his choice of words, warning, "Your words could lead to contempt of court. That is a very loaded statement."

Barrister Zafar argued the SC has extended the principle of the right of living, which is not tantamount to re-writing of the Constitution.

The CJP inquired how could a judge rule on someone's defection. It is the prerogative of the party head to declare its member as defected. Members of parliament and political parties are not subordinate to a judge or chief justice. Political parties operate under the guidance of their party heads.

Justice Amin-ud-Din Khan inquired about who chooses the leader of the parliamentary party. Barrister Zafar responded that members of parliament select their parliamentary leader. He submitted that the-then president had sought the court's opinion on Article 63A and insisted that a review petition could not be filed against it. He argued that if further explanation had been required, only the president could have moved the court.

CJP Isa remarked PTI also filed an application in the case under Article 184 (3). Barrister Zafar responded by saying the party sought life-time disqualification on floor crossing. The court remarked the party could have made legislation in the assembly over the matter.

The CJP inquired if the majority judges mentioned the Article 63A ruling as an opinion or a decision. Barrister Zafar said it is up to the court to decide whether it was an opinion or a decision. The CJP remarked, "It reflects you support the review petitions to the extent that the word decision be replaced with opinion."

Barrister Zafar said it is my advice being an amicus curiae, "You all judges sit together and find a solution to the problem."

The CJP made a counter advice to Barrister Zafar, saying, "It is our advice that all political parties sit together and resolve the issues," prompting a laughter in the courtroom.

CJP Isa remarked there is no tussle among the judges, adding, "Let me clarify, there is no division in our institution, there can be two opinions on a point."

Justice Naeem Akhtar Afghan said it is mentioned in the Constitution as to when the vote is not counted, adding an attempt was made to use the court at the time of voting in the no-trust motion. The judge inquired Barrister Zafar, "Don't you think the judges re-wrote the Constitution through the interpretation?" adding the amendment could not be done through parliament, it was done through judges.

Justice Jamal Khan Mandokhail inquired as to why the president's question was not forwarded to the parliament. The judge said the people have expectations from judges, asking, "If 17 people (Supreme Court judges) fail to deliver, what will happen then?"

The court completed the hearing after listening to the arguments of PPP counsel Farooq H Naek and other lawyers. Later, the judges held consultation in the courtroom and Chief Justice Qazi Faez Isa announced the verdict on the review petitions. The court said it will release the detailed verdict later.