ISLAMABAD: The federal government is planning to file an application in the Supreme Court seeking a review of its decision on the interpretation of Art­icle 63-A of the Cons­ti­tu­tion, according to sources.

The government’s plan to file a review is doubly interesting because the Supreme Court Bar Association (SCBA) had already filed a similar petition against the order.

However, the government is suspicious of the intentions of Abid Shahid Zuberi, the current SCBA president, whose political inclinations were “diametrically opposed to that of the current ruling coalition,” sources told Dawn.

The government belie­ved that there was a likelihood that SCBA — with Mr Zuberi as its head — might withdraw the review petition altogether. In such an eventuality, the government will lose the chance to advance its point of view to convince the top court to revisit the decision, the source said.

The SCBA filed the rev­iew petition on June 23, 2022, through senior counsel Mansoor Usman Awan.

Now Mr Awan has assumed the office of the attorney general for Pakistan and therefore cannot argue the matter on behalf of SCBA whenever the case is taken up. He however can assist the court if ordered.

The federal government and Mr Zuberi have been reportedly at odds since February when the latter featured in an audio conversation leaked on social media.

In the conversation, former Punjab chief minister Parvez Elahi was allegedly telling Mr Zuberi to fix the case of his ex-aide before a specific Supreme Court judge.

SCBA petition

Article 63-A outlined the process to disqualify a lawmaker who votes against the party line in the assembly during the election of the prime minister or chief minister, vote of confidence or no-confidence and budget.

In May 2022, a five-member bench of the Supreme Court, while deciding the presidential reference for the interpretation of the article, said votes of defecting lawmakers will not be counted.

The decision was instrumental in packing up the transient Hamza Shahbaz-led government in Punjab which was formed with the support of 25 dissident PTI lawmakers who voted in favour of the PMLN leader.

In its review petition, the SCBA had argued that the court’s opinion through the judgement was not in accordance with the parliamentary democracy established under the Constitution.

The framers of the Constitution had intended to disregard defecting votes to be a stop-gap arrangement for ensuring stability during the first decade of the Constitution, it stated.

Had it been the intent of the framers, or subsequently the Parliament to provide for disregarding defecting votes, a constitutional provision similar to the erstwhile Article 96(5) could have been inserted in the Constitution.

Thus in the absence of such provision, the interpretation of Article 63-A, adopted by the Supreme Court, amounted to “reincarnating the proviso to Article 96(5) of the Constitution which had not only been expressly subjected to a sunset clause by the framers but has also never been re-introduced by the parliament.”

The Supreme Court’s interpretation of Article 63-A was tantamount to rewriting or reading into the Constitution which contradicts its previous orders.

The court had held in the past that the Constitution was to be interpreted strictly in accordance with the clear and express language and that there was no room to supply additional meaning to constitutional provisions where there was no ambiguity in the language of the Constitution, the SCBA said.

Published in Dawn, June 4th, 2023

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