ISLAMABAD (Dunya News) – The Supreme Court Thursday accepted the review petitions against the decision on Article 63-A, annulling the ruling that dissident members' votes should not be counted.
A five-member larger bench, headed by Chief Justice Qazi Faez Isa, heard the review appeal on Article 63-A. The bench announced the short order after hearing arguments of the parties.
The court "unanimously" declared that the vote of dissenting members would be counted [in case of no-confidence motion].
It may be recalled that through its May 17, 2022 verdict, the SC had declared that the vote cast contrary to the parliamentary party lines under Article 63-A should not be counted. The penalty for violating Article 63-A was disqualification of the defecting lawmaker.
Earlier, Pakistan Tehreek-e-Insaf (PTI) counsel Barrister Ali Zafar boycotted the hearing of the review plea in Articles 63-A case after an exchange of word with Chief Justice of Pakistan (CJP) Qazi Faez Isa.
As Barrister Zafar refused to further advance arguments in case of not allowing his client - PTI founder Imran Khan - to present his submissions in court, the chief justice appointed Zafar judicial assistant in the case.
As the proceedings began, Barrister Ali quoted the PTI founder as saying the bench is not legal so there is no point in proceeding.
The PTI founder’s assertion irritated the CJP who asked Zafar not to mention his leader.
Barrister Ali retorted that the government was bringing about constitutional amendment and judicial package for you. "If you decide this case, it will be tantamount to grant permission for horse trading," he said.
At this point, the CJP warned him against “crossing the line". "We can issue you a contempt of court notice. You are committing insult before the verdict.”
“You are insulting [us] before the judgement. We cannot allow such rhetoric,” the CJP remarked.
Justice Jamal Mandokhail questioned him how he can say we are allowing horse trading.
Chief Justice Isa said that "we respect you, you should respect us. Your statement is harsh. If we explain what is horse trading, you will be embarrassed."
Justice Mandokhail asked him if the presidential reference is not a decision, but an opinion, then how is it being implemented. Did the president say that the opinion has come, now topple a government?
The chief justice reminded him what Hasil Bizenjo said about a Senate election. “Cameras were installed in an institution like the Senate during the election, Mr Ali Zafar, why are you afraid of a decision.”
The chief justice asked him to argue the case. It’s possible we reject this revision petition.
Ali Zafar pleaded that the president had asked for an opinion regarding 63-A. A review cannot be filed against opinion. Only the President of Pakistan could have referred if further clarification was required.
The CJP asked him that he has also filed an application in this case. Barrister Ali replied that he had sought a lifetime disqualification for floor crossing.
CJP Isa opined that parliament can legislate on this issue.
The chief justice asked him whether the majority judges who gave the judgement of 63-A wrote the word “opinion” or used the word “decision”.
Ali replied that it is for this court to decide whether it was an opinion or a decision.
The chief justice said that means he supported revision to the extent that the word decision should be replaced by opinion.
Justice Mandokhail said in his remarks that he and Justice Miankhel were also part of the earlier bench. No objection was raised against us. Ali Zafar replied that the objection was not on a personality, it was on the composition of the bench.
Barrister Ali argued that the petition of the Supreme Court Bar was related to voting in the no-confidence motion. The Supreme Court wrongly combined presidential references and constitutional petitions. The court disposed of the constitutional petitions by saying that it had given an opinion on the reference.
“Revision jurisdiction is limited,” he added.
Chief Justice Isa remarked that whether one like it or not, he is bound to act under constitution or implement the death penalty. “Can a judge take oath and say that he is not happy with this provision of the constitution.”
The CJP stated that every dictator says he will eliminate all corrupt members and assemblies. But everybody joins the military regime and then start talking of democracy.
Ali Zafar said that the Supreme Court has acknowledged the principle of right to life given in the constitution. Advocating a fundamental right does not mean rewriting the constitution.
He said the constitution provides for a right to form a political party. It is not written in the constitution that the party can also contest elections. The courts interpreted and declared the political parties are eligible for election. Later, parliament legislated in this regard.
In this case the court interpreted a point and parliament legislated later, and it is not called rewriting the constitution.
The chief justice remarked that democracy continued to be derailed because this court kept validating wrongful actions. Justice Afghan said that yesterday the court was dared to give a decision against the PTI. Is this the way to get a decision by threatening the court?
He said there were posts on the social media regarding judges. Institutions are important, and not personalities, he continued.
Ali said that he cannot close his eyes to what is going on outside [a possible reference to political situation of the country]. The chief justice said he can explain what was going on inside [the court and the bench]. Nothing is going on inside.
Barrister Ali opined that all the judges should sit together and make rules [for judges].
Chief Justice Isa remarked that there is no rift among the judges. The institution [of Supreme Court] is not falling apart.
The CJP said that “you gave us free advice, now we give you a free advice. All the political parties should sit together and settle the issues. Then, it will be said that you have advised [to sit together]. We are just asking to sit together, sit and do whatever you want.”
Winding his arguments, Barrister Ali said he had argued the case after 11:30am as a judicial assistant, and not as a counsel for the PTI.
FAROOQ NAEK
People's Party lawyer Farooq H. Naik came to the rostrum and argued that floor crossing is allowed in Britain. It is considered as personal freedom.
The practice is allowed in the US and Canada, also. However, in India there is disqualification at floor crossing.
Nowhere in the world is there a law or principle of not counting of votes.
SC RSUMES HEARING
The Supreme Court on Thursday resumed hearing of the review petitions concerning Article 63-A.
A five-member larger bench, led by Chief Justice Qazi Faez Isa, presides over the hearing. Justices Ameenuddin, Jamal Mandokhail, Naeem Akhtar Afghan and Mazhar Alam Miankhel also are on the bench.
Supreme Court Bar Association President Shahzad Shaukat completed his arguments on Wednesday.
Imran Khan’s lawyer Ali Zafar presented arguments against the review petitions. The court rejected objections raised by the PTI lawyer regarding the bench.
The court also granted Ali Zafar permission to consult PTI founder Imran Khan in Adiala Jail.
The federal government and the Pakistan Peoples Party have expressed their support for the review petitions.
WEDNESDAY'S HEARING
Chief Justice Qazi Faez Isa on Wednesday rejected the PTI's objection to the formation of the bench hearing review petition of the Article 63-A case.
The hearing turned sour when there was a bitter exchange between PTI's Syed Mustafin Kazmi and the chief justice.
As PTI’s Barrister Ali Zafar came to the rostrum, his fellow counsel Kazmi followed him and objected to two judges – Justice Naeem Afghan and Justice Mazhar Alam – on the reconstituted bench.
The chief justice expressed his anger and called police to oust Advocate Kazmi from the courtroom.
When the hearing resumed, Barrister Ali also objected to the formation of the CJP-led bench.
The bench took into account his objection during the proceedings and “unanimously” rejected the objection.
Before adjourning the hearing until Thursday, the chief justice allowed Ali Zafar to consult PTI founder Imran Khan in the jail.