The Supreme Court of Pakistan on Thursday issued written order regarding acceptance of review petition pertaining to the interpretation of Article 63A of the constitution.
The five member larger bench was headed by Chief Justice of Pakistan Qaze Faez Isa and comprising Justice Amin ud Din Khan, Justice Jamal Khan Mandokhail, Justice Naeem Akhtar Afghan and Justice Mazhar Alam Miankhel.
The 23-page judgment authored by Chief Justice of Pakistan said, “Article 95(4) of the Constitution stipulates that if a no-confidence resolution, is passed by the majority of total membership of the National Assembly the Prime Minister shall cease to hold office.”
It read, “Article 186 of the Constitution provides that the President of Pakistan may refer a question of law to the Supreme Court for its opinion under its advisory jurisdiction. Constitution Petition No. 2 of 2022 was filed on 17 March 2022. Before the reference was filed their lordships had decided to entertain it and had directed that if and when it is filed the reference should be fixed for hearing with Constitution Petition No.2.”
Reference submitted to this Court was under the signature of Dr. Arif Alvi, President, Islamic Republic of Pakistan. The reference did not attach, nor refer to, any decision/resolution of the Cabinet nor the advice of the Prime Minister authorizing its filing.
The judgment said, “The Reference did not disclose that a resolution seeking a vote of no-confidence had been submitted in the National Assembly on 8 March 2022 against the then Prime Minister, Mr. Imran Khan.”
It said, “What President Alvi titled to be ‘Questions of Law’ were not proper questions.” It further said, “Instead of seeking an opinion on questions of law, President Alvi expounded what he considered to be a moral issue, gave his own opinion and wanted this Court to concur with it.”
The written order said, “The Constitution does not state that the opinion given by this Court must be abided by nor does it state that if two or more opinions are given which one should be accepted.”
The court said, “Article 63A does not state that the votes of any member should not be counted nor that a member who does not vote or abstains from voting contrary to the Parliamentary Party’s direction would automatically be de-seated.” It said, “The plain language of Article 63A of the Constitution was ignored and substituted by the personal opinions of the three Honorable Judges.” The court said, “The language of Article 63A was simple, clear and unambiguous and was patently self-executory. It did not require interpreting, however, this was done and in its place a new Article emerged.”
It read, “Another consequence of the majority’s judgment would be that once a Prime Minister and Chief Ministers are elected they can never then be removed either by their own party or by the majority membership of the concerned assembly. Nothing can be more undemocratic; the majority’s judgment has opened the way to transform the leader of a political party into a dictator, simply because the party’s leader can never be challenged.” The words and the language used in the Constitution, its placement and context was overlooked by the three Judges.
It further said, “The majority’s judgment interestingly referred to decisions from a number of countries and forums, including from the United States of America, Canada, United Kingdom, India and the Privy Council. Foreign legal books and authors were also quoted. But, this appears to have been done, without first ascertaining the law in the respective countries regarding defections, and the consequences thereof.” The top court said, “What a particular Judge considers to be right or wrong, or ethical or unethical, is neither the law nor the Constitution.
The court said in written verdict, “Instead of a constitutional or legal basis the majority’s judgment has a surfeit of moralisms and non-legal terminology, such as healthy (41 times), unhealthy (5 times), vice (9 times), evil (8 times), cancer (8 times), menace (4 times), etc.” It said, “The majority’s judgment also reflects a complete distaste for parliamentarians (in its paragraph 106) as it proclaims that in the history of Pakistan and its Parliament only once did a parliamentarian come close to becoming a conscientious objector who took the path of defection and deseating under Article 63A.” The expression of such contempt for politicians and parliamentarians is regrettable.
Let us not forget that Pakistan was achieved by politicians who had gathered under the banner of the All India Muslim League and its Quaid (leader), M. A. Jinnah, who strictly followed the constitutional path.
