The Supreme Court’s decision to overturn the interpretation of Article 63(A) of the Constitution has struck Pakistan Tehreek-e-Insaf (PTI) like a nuclear bomb. It has now become not just difficult, but nearly impossible, to prevent the ruling coalition from securing a two-thirds majority in Parliament. This decision has removed all constitutional and legal obstacles the government had been facing. Analysts suggest that the government will now easily pass its proposed constitutional amendment package and establish a new constitutional court to resolve political disputes, thereby ending the Supreme Court’s political role and limiting it to public interest cases. Sources indicate that if the constitutional amendment package is approved, Justice Qazi Faez Isa may become the first Chief Justice of the new constitutional court.
The ruling, issued by a bench headed by Chief Justice Qazi Faez Isa, which invalidated the interpretation of Article 63(A), is significant because it also liberates the government from being blackmailed by Maulana Fazlur Rehman. If the government manages to convince some members of opposition parties and independents to vote in favour of the amendment package, their votes will now be counted, in contrast to the 2022 ruling by Justice Umar Ata Bandial. The five-member bench, led by Isa, has declared Bandial’s decision unconstitutional. According to Isa’s bench, if a parliamentarian’s vote isn’t counted, the law on floor-crossing cannot be applied. This means that if no floor-crossing offence has occurred, no disqualification punishment can be imposed.
It’s worth recalling that this decision came during Imran Khan’s tenure as Prime Minister, at a time when opposition parties were preparing a no-confidence motion against him. At the time, rumours were rife that more than two dozen PTI members were planning to vote against Khan. Acting on General Faiz Hameed’s advice, President Arif Alvi sent a presidential reference to then-Chief Justice Umar Ata Bandial, asking whether the vote of a parliamentarian who votes against party policy should be counted. A five-member bench, led by Bandial, ruled that votes cast in violation of party policy would not be counted, and the members would be disqualified.
During this time, when Hamza Shehbaz Sharif was asked to seek a vote of confidence after becoming Chief Minister, 19 PTI members of the Punjab Assembly voted in his favour. PTI approached the Supreme Court to cancel these 19 votes. As expected, Bandial cancelled these votes, disqualified the assembly members, and prevented their votes from being counted. This led to Hamza Shehbaz being ousted as Chief Minister and Pervaiz Elahi taking his place. The review appeal against this decision remained pending for over two years, and Justice Bandial never heard it. Justice Qazi Faez Isa, however, heard the appeal and overturned Bandial’s decision. Before this, Justice Mansoor Ali Shah and Justice Munib Akhtar had thrown obstacles in the path of hearing the appeal, but Isa formed a new bench and ruled that votes cast against party policy should be counted.
This ruling came in response to a review petition filed by the Supreme Court Bar Association. The petition argued that even if the floor-crossing law applied to a member, their vote should still be counted. Now, those who vote in favour of the government’s proposed constitutional amendments will have their votes counted, granting the government a two-thirds majority. The parliamentarians who are disqualified for voting against party policy will be re-elected and return to Parliament.
Earlier, a five-member bench, headed by Chief Justice Isa, heard review petitions regarding the interpretation of Article 63(A). PTI’s Barrister Ali Zafar presented arguments but later objected to the bench’s composition and refused to participate further in the proceedings, while PPP’s Farooq H. Naek presented arguments on behalf of his party.
Chief Justice Isa, while announcing the decision, stated that the Supreme Court Bar Association’s review petition was unanimously accepted, and a detailed decision would be issued later. He remarked that the previous ruling on Article 63(A) was riddled with contradictions. On one hand, it stated that voting is a fundamental right of a parliamentarian, but on the other hand, this fundamental right was nullified under party directives. The Chief Justice also commented that it is the party leader’s prerogative to declare a member defiant, not a judge’s. He further stated that political parties and members of Parliament are not subordinates of any judge or Chief Justice; they answer to their party leader.
During the hearing, Justice Aminuddin Khan asked who elects the parliamentary leader, to which Barrister Ali Zafar responded that members of Parliament elect their parliamentary leader. Justice Jamal Mandokhail remarked that the right to vote belongs to the parliamentarian, so how can it be said to belong to the political party? Chief Justice Isa then asked Zafar if it would be democratic for a judge to use a party leader’s authority, adding that judges are not elected. Zafar responded that history tells a different story. Zafar also referenced the 63(A) ruling, which mentioned horse-trading as a “cancer,” a term Isa said was inappropriately used. He clarified that judges can only determine if something is constitutional, not if it’s a medical condition.
Chief Justice Isa remarked that voting against party policy under the current system is akin to a “suicide attack” — the vote wouldn’t be counted, and the member would lose their seat. He added that if a member disagrees with party policy, they can resign. Justice Isa said Zafar’s arguments were fundamentally anti-democratic and noted that in the past, martial laws were endorsed by “rubber-stamp judges.” However, Isa stressed that this trend must now end.
