The Supreme Court of Pakistan has begun hearing the Supreme Court Bar Association’s (SCBA) review petition against the May 17, 2022, ruling on the defection clause under Article 63A of the Constitution. The hearing has drawn attention after multiple changes to the bench, with Justice Munib Akhtar and Justice Syed Mansoor Ali Shah successively declining to sit on the panel.
Chief Justice of Pakistan (CJP) Qazi Faez Isa presided over the session and had proposed Justice Mansoor as a replacement after Justice Akhtar’s refusal. However, Justice Mansoor also opted out, leading to Justice Naeem Akhtar Afghan being added to the bench.
The primary focus of the hearing revolved around the previous court’s decision to merge two distinct constitutional jurisdictions — Article 186 (advisory jurisdiction) and Article 184(3) (enforcement of fundamental rights) — in the presidential reference filed by former President Dr. Arif Alvi. CJP Isa questioned the legality of merging these jurisdictions, pointing out that while the court’s opinion under Article 186 is advisory, its rulings under Article 184(3) carry binding force, which could potentially lead to contradictions.
The SCBA, represented by its president Shahzad Shaukat, argued that the 2022 ruling effectively “rewrote the Constitution” by prioritising the rights of political parties over individual lawmakers under Article 63A. This interpretation, the SCBA contends, undermines fundamental rights by enabling party heads to exercise disproportionate control over members, with their votes against party lines not counted in no-confidence motions. CJP Isa echoed concerns that the ruling contradicts Article 95 of the Constitution, which governs no-confidence motions, and raised the question of what purpose balloting serves if dissenting votes are disregarded.
The Supreme Court has asked the counsel to present comparative analyses of how parliamentary dissent is handled in countries such as the UK, USA, Canada, and Australia. The court emphasised that the case remains a matter of significant public interest, and former President Alvi, who initiated the reference, could join the proceedings at any time.
As the hearing progresses, the court declined to issue notices requested by Syed Ali Zafar, representing Imran Khan, asserting that this is not a typical adversarial case and no individual’s rights are at stake. However, the court assured Zafar that his objections, including those related to the bench’s composition, would be addressed in due course.
