After SC opinion on Article 63-A, what's the status of Punjab CM election?

Legal experts believe validity of PML-N's Punjab govt will be challenged by PTI after SC says defecting votes to be disregarded.
Published May 17, 2022

The Supreme Court on Tuesday, in its decision on a presidential reference seeking interpretation of Article 63-A of the Constitution, said the votes of defecting lawmakers will not be counted.

Article 63-A seeks to restrict lawmakers from voting (or abstaining) in violation of party instructions "in relation to election of the prime minister or chief minister; or a vote of confidence or a vote of no-confidence; or a money bill or a Constitution (amendment) bill".

In its interpretation of this article, the apex court said votes cast against party direction "cannot be counted and must be disregarded, and this is so regardless of whether the party head, subsequent to such vote, proceeds to take, or refrains from taking, action that would result in a declaration of defection".

This opinion of the apex court raises some pertinent questions with respect to the election of the Punjab chief minister, which resulted in PML-N's Hamza Shehbaz becoming the provincial chief executive.

That is because contrary to what happened in the National Assembly, the votes of 25 dissident PTI lawmakers were instrumental in helping Hamza get over the line; he received a total of 197 votes while 186 votes are required for a simple majority. If the 25 votes by PTI lawmakers are removed from his tally, he would lose his majority.

So, what does today's SC verdict mean for the future of Hamza Shehbaz's government in Punjab? talked to some legal experts to answer this question.

'Depends on ECP verdict'

Barrister Asad Rahim, who assisted the federation in the case, said the current decision was directly connected to what the Election Commission of Pakistan (ECP) would decide with regards to Punjab’s dissidents, which is "the first factual hurdle".

"If the ECP decides they have defected, contrary to the direction of the parliamentary party, the Supreme Court judgment will apply, and the election of the chief minister will be set aside."

However, Rahim added, that this could only happen once "the question of whether the opinion is to be applied retrospectively" had been decided. He also said that in future, in cases of defection, the speaker would simply not count dissenting votes.

A retrospective application would mean that today's judgment could be applied to past events, such as the April 16 election of the Punjab chief minister.

Lawyer Abdul Moiz Jaferii had a similar opinion. He said the PTI could take the validity of the CM election to court "but it would first need to be seen what the ECP based its decision on".

Earlier today, the ECP reserved its verdict on a reference seeking the disqualification of 25 dissident MPAs of the PTI, who had voted for PML-N's Hamza Shehbaz in the election for the Punjab chief minister on April 16.

Barrister Salahuddin, meanwhile, said the repercussions of today's verdict on the Punjab government were "uncertain".

"Advice by the top court is [usually] prospective in nature," he said, implying that this verdict may not be applicable to the election of the Punjab chief minister. But, he added, that the PTI would likely take this to court where the question of prospective or retrospective application would be decided.

When asked whether the apex court's advisory opinion is binding, Barrister Salahuddin said the Supreme Court had in a 2005 advisory opinion on the Hasba bill case said its advisory opinion was binding.

"But that opinion in itself was part of an advisory opinion," he noted, adding that there was no apex court judgment on this.

'ECP's role curtailed'

Lawyer Basil Nabi Malik said this order would have profound effects in Punjab.

"It is a huge blow for the PDM government there. The interpretation given by the Supreme Court to Article 63-A and its application are far-reaching, and shall also appear to be applicable to proceedings in Punjab for the election of the CM."

He said the top court's opinion regarding "discarding votes irrespective of whether the party head takes any action that would result in a declaration of defection seems to be deliberate".

"It appears to reduce the role of the ECP to a mere rubber stamp or post office and further augments and concentrates power in the hands of the party head whilst also serving to discourage dissent. It will create further instability in an already volatile situation, and on account of this, the very relevance of the ECP proceedings in relation to the defection of Punjab MPAs shall come into question, as well as the very legitimacy of the election of Mr. Hamza Shehbaz."

Malik said ECP's right to adjudicate on this is now compromised and in doubt (until detailed reasons can better explain their role), and hence, any decision of the ECP refusing to issue a declaration can be challenged as unlawful in light of the short order.

He also said the PTI could make an argument calling for the retrospective application of today's SC opinion. According to him, the PTI could argue in court that no new law or amendment to an existing law had been enacted but an existing law, which was in place even at the time of Punjab CM elections, had been interpreted by the apex court and so there was no bar in place on the retrospective application of that interpretation.

'Governor can ask CM to take vote of confidence'

Jaferii also noted that after today's verdict, Punjab governor could ask the chief minister to take a vote of confidence. Similar views were echoed by lawyer Salman Akram Raja, who, while talking to Geo News, said that "the acting Punjab governor would be able to order the chief minister to take a vote of confidence".

Under Article 130(7) of the Constitution, "The Chief Minister shall hold office during the pleasure of the Governor, but the Governor shall not exercise his powers under this clause unless he is satisfied that the Chief Minister does not command the confidence of the majority of the members of the Provincial Assembly, in which case he shall summon the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly."

According to Jaferii, a confidence vote called for by the governor was "the cleanest way for the PTI to remove Hamza from office". That's because in light of today's verdict, if dissident PTI lawmakers side with Hamza in a confidence vote, their votes would be disregarded and there's no ambiguity related to a retrospective application of the SC opinion in that case.

Party standings in Punjab Assembly

In light of today's verdict, on paper, Hamza now commands the support of 172 MPAs (PML-N's 165 plus PPP's 7 votes). However, a group of four dissenting PML-N lawmakers, led by Jalil Ahmed Sharaqpuri, is not expected to support Hamza in case of a new election for the chief minister, leaving them with 168 votes.

After subtracting the 25 dissidents, the PTI-PML-Q alliance also has a total of 168 votes (183-25+10).

Even with the backing of one member of the Rah-i-Haq party and five independents, there appears to be no side with a clear majority, for which the support of 186 members is required.

In case the current government falls — either through a governor mandated confidence vote or by a court order — and no side is able to show a simple majority, a run-off election will decide the chief minister.

This means that whichever side is able to show the support of more members will have its chief minister in place. In that case, votes of the five independents and the one member from the Rah-i-Haq party will be the decisive factor.

However, if no side is able to show a clear majority in case the chief minister is removed after failing a confidence vote, the governor could also possibly dissolve the assembly, according to Article 112 (2) of the Constitution, which states:

"The Governor may also dissolve the Provincial Assembly in his discretion, but subject to the previous approval of the President, where a vote of no-confidence having been passed against the Chief Minister, no other member of the Provincial Assembly commands the confidence of the majority of the members of the Provincial Assembly in accordance with the provisions of the Constitution, as ascertained in a session of the Provincial Assembly summoned for the purpose."