Hamza's election as Punjab CM: LHC wonders if SC's 63-A ruling could apply in 'present circumstances'

Published June 29, 2022
Punjab Chief Minister Hamza Shehbaz. — Photo courtesy Twitter
Punjab Chief Minister Hamza Shehbaz. — Photo courtesy Twitter

The Lahore High Court (LHC) on Wednesday said it would look at the Punjab chief minister election and see if the Supreme Court's interpretation on Article 63-A could apply in the present circumstances as it resumed hearing the pleas of PTI, PML-Q and Punjab Asse­mbly Speaker Chaudhry Parvez Elahi against Hamza Shehbaz's elevation to the role.

A five-member bench comprising Justice Sadaqat Ali Khan, Justice Shahid Jamil Khan, Justice Shehram Sarwar Chaudhry, Justice Sajid Mahmood Sethi and Justice Tariq Saleem Sheikh is hearing the case.

Hamza was elected as the Punjab CM on April 16, during a provincial assembly session that was marred by violence. He received a total of 197 votes — 11 more than the required 186 — including from 25 dissident PTI MPAs that were crucial for his victory. On May 20, those lawmakers were de-seated by the ECP for defecting.

Since then, a series of petitions have challenged Hamza's election as the chief minister. All of them were, however, clubbed together after the court observed that they were identical.

During the proceedings yesterday, the court had hinted at holding fresh elections for the post of Punjab’s chief minister under April 16 circumstances.

Justice Sadaqat, who heads the larger bench, had observed that the fresh polling would be conducted by the same presiding officer who held the previous poll, who in this case is Punjab Assembly’s Deputy Speaker Dost Muhammad Mazari.

He also said that the Supreme Court had already declared that the votes of the defectors were not to be counted and “this court can issue an order for implementing the Supreme Court’s decision”.

Earlier, in the light of the top court's interpretation on Article 63-A — related to the disqualification of lawmakers over defection — the Election Commission of Pakistan (ECP) had de-seated 25 Punjab Assembly MPAs of the PTI for voting Hamza, stating that they had defected from the party.

'Interpretation of SC's order'

When the hearing resumed today, the larger bench reiterated that the interpretation of SC's orders could be applied in the present circumstances.

"If we find that the previous verdicts apply on our decision, we will immediately issue orders," Justice Shahid Jamil remarked. "We are looking at the elections and seeing whether the SC's decision applies on it or not."

At one point, the court also said that the president and governor were responsible for protecting the Constitution. "They can't choose to be silent over any constitutional matter," it stressed.

The court observed that it had two options at the moment. "If we say that those 25 votes are not included (in the CM election) then the presiding officer will have to look into the matter once again."

Here, PTI's counsel argued that this would make the court responsible for issuing directions for the next elections. The court, however, disagreed, saying that the presiding officer will look at the matter according to the law.

Meanwhile, at the outset of the hearing, PTI's counsel Ali Zafar highlighted that there were three petitions in the court at the moment. "One is related to the election, one is related to the oath and one is related to illegal actions."

Subsequently, the court summoned Hamza's lawyer and asked him to present his arguments.

After hearing arguments from the lawyers of PML-N and PTI, the court adjourned the hearing till 12:30pm on Thursday (tomorrow).

The petitions

In his petition, Elahi, who was also the PTI-PML-Q's candidate for the CM Office, requested the court to declare that Hamza was not the chief minister since he had failed to secure the requisite number of votes in light of the SC's interpretation stating the votes of defecting lawmakers would not be counted.

Therefore, the April 16 election, its results and the certificate issued by the Punjab Assembly deputy speaker to Hamza declaring his victory had "no legal effect", the petition stated.

The petition requested the high court to declare "all consequential actions taken by [Hamza] in his purported capacity as the chief minister Punjab and all and any other communications made, orders passed and notifications issued etc., consequential upon the declaration of the afore-mentioned result and issuing the set certificate ... to be null and void".

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

Separately, PTI's petition, which was filed by MPAs Mohammad Sibtain Khan, Zainab Umair, Mian Mohammad Aslam Iqbal, Syed Abbas Ali Shah and Ahsan Saleem Baryar, stated that the session held for conducting the election witnessed "immense chaos and most unfortunate events".

Deputy Speaker Mazari took "unlawful" aid from the police and provincial officials for holding a "sham and fraudulent" election, following which he communicated that Hamza had won, the petition said.

It noted that votes of 25 dissident PTI MPAs were also counted in the final tally for Hamza. While the then governor Cheema had refused to accept the election results, Hamza was administered the oath due to "judicial overreach", it contended.

"As per the investigation conducted by the [then] honourable governor of Punjab, the respondent secretary of the provincial assembly has tendered a report detailing the various dimensions of the election held on 16.04.2022 and has categorically informed the [then] honourable governor that the referred elections were/are unlawful; thus consequently the certificate issued by the respondent deputy speaker/acting speaker was/is without any lawful sanction/legal authority," the petition reads.

According to the petition, Hamza's election was in violation of the Constitution and the Rules of Business of the Punjab Assembly. It recalled that Hamza had approached the LHC for holding the election, adding that he treated it as an urgent matter because he had the support of 25 dissident PTI MPAs, which was a violation of Article 63 of the Constitution.

An analysis of the Supreme Court's interpretation would lead to the conclusion that the chief minister's election was unlawful, it stated.

"On this ground alone and keeping in view the scope and intent behind Article 63-A of the Constitution, the election held on 16.04.2022 [should] be declared as being without lawful authority and consequently be struck down."

Article 63-A

According to Article 63-A of the Constitution, a parliamentarian can be disqualified on grounds of defection if he "votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, 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".

The Article says that the party head has to declare in writing that the MNA concerned has defected but before making the declaration, the party head will "provide such member with an opportunity to show cause as to why such declaration may not be made against him".

After giving the member a chance to explain their reasons, the party head will forward the declaration to the speaker, who will forward it to the chief election commissioner (CEC). The CEC will then have 30 days to confirm the declaration. If confirmed by the CEC, the member "shall cease to be a member of the House and his seat shall become vacant".

According to the Article, any party that is aggrieved with the Election Commission's decision can file an appeal in the Supreme Court within a month. The apex court has 90 days to decide the matter.

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