UNANIMOUSLY accepting the review petition of the Supreme Court Bar Association (SCBA), the Supreme Court, on Thursday, in a landmark verdict, annulled its earlier judgement delivered in 2022 on the presidential reference, seeking the opinion of the court on Article 63(A) of the Constitution. The five- member bench of the apex court, led by Chief Justice of Pakistan, Qazi Faez Isa, set aside the 2022 interpretation of the defection clause, which was considered by a majority of the members of the legal community as re-writing of the Constitution.
The latest verdict has largely been welcomed by jurists and constitutional experts but there are reservations about timing of the decision, composition of the bench and the speed with which the case was disposed of. However, it may be recalled that the controversial judgement of 2022 was announced to suit political interests of a particular political party by giving an interpretation, which was clearly beyond the spirit and meanings of the plain text of the Constitution. On May 17, 2022, a five-member larger bench of the apex court, headed by the then Chief Justice, Umar Ata Bandial, by a majority 3-2, had restrained the lawmakers from casting their votes in parliament against their parties’ directions. The court had held that the votes cast by the dissident members of parties would not be counted. It was clearly a biased political decision designed to bring the PTI back in power in Punjab. It was in this backdrop that former Attorney General Ashtar Ausaf, in his reaction to the latest verdict of the apex court, said the earlier decision of the Supreme Court was a misstep in judicial history, which now stands corrected. One also must not lose sight of the fact that the review petition was filed by no other than the apex body of the legal community which also held the view that the 2022 decision was biased and amounted to judicial lawmaking. The timing might suit the government, which has declared its intentions to move a set of constitutional amendments in the parliament including reforms in the judicial system. The government clearly lacked the required two-third majority to pass the proposed amendments and removal of the voting bar on the members might strengthen the hands of the government to attract some members from the opposing side to vote in favour. However, this doesn’t mean that the verdict itself was wrong or violation of any principle of the justice or clause of the Constitution, rather a wrong was committed in the past, which has now been corrected. There were legitimate concerns that the earlier judgement had gone much beyond its ambit in interpreting Article 63-A. It was because of this and similar other verdicts of the judiciary that triggered a feeling among parliamentarians that their role was being usurped by another institution. No one would differ from the view that horse-trading was a curse in our political system and is one of the major causes of political instability in the country. However, there should be a difference between horse-trading and responding to the legitimate voice of your conscience when it comes to voting on crucial matters. Political fallout of the latest verdict for any political side notwithstanding, the apex court has, once again, upheld that lawmaking and re-writing the Constitution was not the job of the judiciary. It is another goodwill gesture towards the parliament which is supreme as per the constitutional scheme of things. It is hoped that relevant legal and constitutional issues will be taken care of when the court releases its detailed judgement on the interpretation of Article-63A.
