Newly-formed SC bench resume review plea against Article 63(A) verdict

ISLAMABAD: The Supreme Court on Tuesday resumed hearing the review plea against the top court’s 2022 verdict on the defection clause under Article 63-A of the Constitution.

The petition, filed by the Supreme Court Bar Association (SCBA), is being heard by a newly formed five-member larger bench, led by Chief Justice Qazi Faez Isa, comprising Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Mazhar Alam Khan Miankhel and Justice Naeem Akhtar Afghan.

In its May 17, 2022 verdict,  the top court declared that the dissident members of a parliamentary party cannot cast votes against their party’s directives.

According to the SC verdict, Article 63-A was inserted to ensure that when a party is voting on “certain important matters” — electing chief ministers, casting a no-confidence vote, or a constitutional amendment — lawmakers “vote on the basis of a joint stand of the parliamentary party to which they belong”.

A day earlier, CJP Isa had adjourned the hearing on the review plea of Article 63-A due to Justice Munib’s absence and said that Justice Munib would be requested to rejoin the bench, which otherwise, would be reconstituted.

Following Justice Akhtar’s refusal, SC’s bench formation committee included Justice Naeem Akhtar Afghan as the fifth judge in the larger bench.

Justice Munib’s refusal

In its letter written to the SC Registrar, Justice Munib Akhtar refused to be a part of a bench that includes ad hoc judge, Justice Mazhar Alam Khan Miankhel. Justice Munib wrote that his decision should not be considered a recusal from the bench

He questioned the bench constituted by the Practice and Procedure Committee —  the three-member judges’ committee of the apex court which decides on the formation of the SC benches and cases related to human rights.

It is pertinent to mention that following the promulgation of the Supreme Court (Practice and Procedure) Amendment Ordinance 2024, CJP Qazi Faez Isa replaced Justice Munib was replaced with Justice Amin-Ud-Din Khan.

He penned, “Even though no bench was constituted, the Chief Justice (in minority) had proposed a five-member bench, to be headed by the senior puisne  Judge. That proposal has now been abandoned and the Chief Justice has himself assumed command of the CRP, for reasons that are not unknown.”

According to the sources, CJP Isa convened a meeting of the bench formation committee at earlier today to decide on a fifth judge. CJP proposed the senior puisne judge Justice Mansoor Ali Shah’s name to replace Justice Munib Akhtar in the bench.

However, Justice Shah did not attend the meeting and his secretary informed that Justice Mansoor “will not be participating nor wants to be a member of the said bench.”

The committee therefore decided to appoint the second senior member of the bench on the chief justice’s bench, namely, Hon’ble Justice Naeem Akhtar Afghan.