SC hears review plea against Article 63-A verdict with Justice Afghan replacing Justice Akhtar

The Supreme Court Resumes Hearing on Article 63-A Defection Clause

The Supreme Court of Pakistan recently restarted hearing a petition asking for a review of its 2022 decision on the **defection clause**. This clause falls under **Article 63-A** of Pakistan’s Constitution. The petition was submitted by the **Supreme Court Bar Association (SCBA)**, which is a body representing lawyers across the country. The purpose of this petition is to review and possibly change the way the Court interpreted Article 63-A in 2022.

The bench reviewing the case is headed by **Chief Justice of Pakistan (CJP) Qazi Faez Isa**. A few other important judges are also part of this bench, including **Justices Munib Akhtar, Aminuddin Khan, Jamal Khan Mandokhail**, and **Mazhar Alam Khan Miankhel**.

Before we dive into the details of the hearing, let’s break down what **Article 63-A** is and why it’s so important.

### What is Article 63-A?

**Article 63-A** was added to Pakistan’s Constitution to make sure that when members of a political party in the National Assembly (which is one of the two houses of Parliament) vote on major issues, they follow the decision of their **party**. In simple words, this law prevents members of Parliament from going against their own party’s decision on some very important matters.

For example, if a party decides to vote for or against the **election of a prime minister**, a **vote of no-confidence** (which is a vote to remove someone from their position), or a **constitutional amendment** (which means making changes to the Constitution), the members of that party have to vote as a team. If someone in the party decides to vote differently, they could be punished by losing their seat in the Assembly.

This law is meant to ensure that the political party remains united, especially when it comes to big decisions. It prevents individual members of Parliament from “defecting,” which means **changing sides** or voting in a way that goes against their party's stance.

### The 2022 Supreme Court Verdict

In May 2022, the Supreme Court of Pakistan gave a ruling on Article 63-A that sparked a lot of debate. The Court decided that if a member of Parliament votes against their party on important matters, that vote should not count at all. This means that even if they cast a vote, it wouldn’t be considered valid because it went against the party’s official decision.

This ruling was controversial because it placed more power in the hands of political party leaders, limiting the ability of individual lawmakers to vote according to their own beliefs. Instead, they had to follow the party line, even if they personally disagreed with it.

The 2022 verdict was significant because it aimed to prevent what’s called **“floor-crossing”** or **defection**—when members of a party vote in a way that benefits the opposition or goes against the party’s collective decision. In a country like Pakistan, where political stability is often fragile, preventing defections is seen as crucial for maintaining order within the government.

However, this decision also raised questions about **democracy** and **freedom of expression**. Some people argue that members of Parliament should have the right to vote according to their conscience, not just what the party tells them to do.

### The SCBA's Argument Against the Ruling

The **Supreme Court Bar Association (SCBA)** filed a petition arguing that the 2022 decision was not in line with the original intent of the Constitution. The SCBA believes that the framers of the Constitution did not intend for Article 63-A to be interpreted in such a strict manner.

According to the SCBA, Article 63-A was supposed to be a temporary measure to ensure political stability in Pakistan during the early years of the Constitution. The SCBA claims that the Supreme Court’s interpretation goes too far because it effectively **rewrites the Constitution**, giving political parties too much control over their members.

The SCBA also argues that the Constitution should be interpreted based on its **clear and straightforward language**. In other words, the Court should not add new meanings to the words in the Constitution that aren’t already there. They believe that by ruling that defecting votes should not be counted at all, the Supreme Court went beyond what Article 63-A actually says.

### Complications with the Hearing

While the review petition was set to be heard by a five-member bench, a problem arose when one of the judges, **Justice Munib Akhtar**, raised objections. Justice Akhtar had concerns about the inclusion of **Justice Mazhar Alam Khan Miankhel**, who is an **ad hoc judge** (a judge temporarily appointed to the Court).

Justice Akhtar expressed his concerns in a letter, where he questioned whether it was appropriate for an ad hoc judge to be part of such an important case. However, Justice Akhtar made it clear that he was not recusing himself from the bench, which means he wasn’t officially stepping down from hearing the case.

On the same day, Justice Akhtar wrote another letter explaining that the case should be heard by a five-member bench, as originally planned, and not by a four-member bench, which was what had happened temporarily.

The **Chief Justice of Pakistan (CJP) Qazi Faez Isa** then promised that he would try to convince Justice Akhtar to stay on the bench. However, CJP Isa also said that if Justice Akhtar decided not to participate, the bench would have to be reconstituted, which means a new judge would be appointed to the bench to hear the case.

The CJP called a meeting of the **bench formation committee** to decide who the fifth judge on the bench would be. During this meeting, CJP Isa proposed the name of **Justice Mansoor Ali Shah**, a senior judge, to join the bench.

However, Justice Shah chose not to attend the meeting and said that he did not want to be a part of the bench for this particular case. Because of this, the committee decided to appoint **Justice Naeem Akhtar Afghan**, who was available since his work on another bench would finish by 11 am.

### Background: Why Did Justice Akhtar Object?

Justice Akhtar’s decision not to hear the case happened in the context of recent changes to how the bench formation committee operates. This committee is responsible for deciding which judges will sit on which benches to hear cases.

Before, Justice Akhtar was part of this committee, but he was removed after a new **amendment ordinance** was passed. This ordinance gave the **Chief Justice of Pakistan** the authority to select any judge to be the third member of the committee. Justice Akhtar’s removal from the committee may have contributed to his decision to raise concerns about the composition of the bench.

### The Importance of the Review Case

This review petition is extremely important because it addresses fundamental questions about Pakistan’s Constitution, the role of political parties, and the power of the judiciary. The SCBA believes that the 2022 ruling gives too much power to political party leaders, while restricting the ability of individual members of Parliament to express their views through their votes.

If the Supreme Court decides to uphold its 2022 decision, it would mean that political parties will continue to have strong control over how their members vote. This could help maintain political stability by preventing defections, but it might also limit the independence of individual lawmakers.

On the other hand, if the Court chooses to change its ruling, it could open the door for more independence among members of Parliament. However, this could also lead to more instability if lawmakers start voting against their party’s decisions, especially during critical votes like the election of a prime minister or a vote of no-confidence.

### Conclusion

The Supreme Court’s review of Article 63-A is a highly significant case that could shape Pakistan’s political future. At the heart of the matter is the balance between political party unity and individual freedom for members of Parliament. While Article 63-A was originally designed to prevent defections, the way it has been interpreted by the Court has raised questions about the role of political parties and the limits of judicial interpretation.

As the case progresses, it will be important to see how the Court addresses these concerns and what impact its decision will have on Pakistan’s democracy.