• Directs recount of votes cast in April election for CM after excluding defecting PTI MPAs
• PTI to move SC against verdict today
• If a candidate doesn’t secure majority, high court orders run-off poll for simple majority in the house

LAHORE / ISLAMABAD: A five-judge Lahore High Court (LHC) bench on Thursday ordered a recount of votes cast in the April 16 election for the Punjab chief minister after excluding 25 votes of defecting MPAs of the Pakistan Tehreek-i-Insaf (PTI), and in case a candidate fails to secure a majority, go for a run-off poll where a contender requires a majority vote of the members present in the house.

Meanwhile, one of the petitioners in the case, the PTI, has decided to move the Supreme Court on Friday morning (today) against the verdict for not allowing it enough time to gather its members.

“The presiding officer (deputy speaker) of the election held on April 16, 2022 is, therefore, directed to recount votes after excluding 25 votes of the defecting members,” stated the short order of the majority decision handed down by Justice Sadaqat Ali Khan, Justice Shahid Jamil Khan, Justice Shehram Sarwar Chaudhry, Justice Sajid Mahmood Sethi and Justice Tariq Saleem Sheikh. Justice Sethi concurred with the short order, however, recorded separate reasons in a dissenting note.

It said the session, for the purpose of a recount, would be held on July 1 (today) at 4pm.

The order explained if a candidate failed to secure the majority vote (of the total membership of the house) required under Article 130(4) of the Constitution, the presiding officer (the deputy speaker, in this case) shall proceed for a second and further poll unless a candidate secured majority votes (of the members present).

The decision came on appeals filed by the PTI, PML-Q, Punjab Assembly Speaker Chaudhry Parvez Elahi and others against different single bench decisions regarding the election and oath-taking of Chief Minister Hamza Shehbaz.

The bench maintained the session would not be prorogued until the election process is completed and the presiding officer intimated the result to the governor. “The governor shall perform his duty, under Article 130(5), of administering oath… at any time before 11am the very next day.”

The bench further observed that they could not ignore the disorder in various sessions of the provincial assembly, therefore directed that any attempt of disorder from any quarter would be taken as contempt of court and proceeded against accordingly on formal information by any individual.

In the opening paragraphs of its short order, the bench ruled that the Supreme Court opinion on the presidential reference regarding votes of defectors was applicable to the Punjab chief minister’s election held on April 16.

The judges, however, did not quash the notification of Hamza as the CM or direct for a second poll, as sought by the appellants. They clarified that Hamza would cease to be the CM if he lost the required majority (of the members present in the house in case of a run-off poll) after exclusion of 25 votes (of the PTI defectors).

“In this eventuality, functions performed and powers exercised by Hamza Shehbaz as chief minister and his cabinet… shall be protected under the de facto doctrine,” the judges ruled.

The bench though disposed of the appeals regarding the CM’s oath by the National Assembly speaker.

Before concluding its short order, the bench appreciated the print and electronic media for reporting the proceedings professionally and carefully, but noted some vloggers scandalised the proceedings. It directed the Federal Investigation Agency and Pemra to take legal action on their own notice and if informed by any person. “This larger bench shall initiate contempt proceedings for scandalising the proceedings, if so brought formally before this court by any person,” it maintained.

Dissenting note

In his separate note, Justice Sethi agreed with the majority decision on the retrospective enforcement of the SC opinion, disposing of the petitions concerning the CM’s oath by the NA speaker and refusing the prayer to declare Hamza’s election illegal, but disagreed with the date of the recount, saying reasonable time was necessary for enabling MPAs, hailing from far-flung areas, to join the session. He suggested the assembly could have met on July 2 at 4pm.

The judge observed that the direction to directly hold a second poll, in no way, would nullify any direction of the Supreme Court. He explained that after the SC opinion on the defectors’ vote, Hamza could not be allowed to hold the CM’s office, adding it would give him a political advantage over the other candidate.

Justice Sethi set aside the notifications declaring Hamza as the CM and about cessation of Usman Buzdar to hold the office for being illegal and without lawful authority. He restored Buzdar as the CM, as he was on the said date, but declared that all acts/actions executed by Hamza as the CM and his cabinet, would not be adversely affected by his order and proposed reasons.

PTI to move SC

Meanwhile, the PTI announced it would rush to the Supreme Court on Friday against the LHC direction, as it believed the time granted by the high court was too short to ensure the presence of all party MPAs to vote for their candidate, Parvez Elahi. This becomes all the more important when some MPAs have proceeded for Haj.

An informed source told Dawn that a three-judge Supreme Court bench consisting of Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhel was available at the principal seat in Islamabad to hear the appeal. Moreover, a two-judge bench consisting of Justice Yahya Afridi and Justice Aminuddin Khan was present at the apex court’s Lahore registry.

In case the petition is instituted in time at the principal seat, it is likely the bench could issue an injunctive order until a proper bench is constituted to hear the matter later in detail.

Advocate Chaudhry Faisal Hussain, who is associated with PTI, said the high court verdict had failed to resolve the chaos in Punjab.

A senior counsel also representing the PTI, on condition of anonymity, explained that the Punjab Assembly Rules of Procedure and Conduct of Business 1997 required an adequate notice before holding of assembly sessions. He believed the sessions should not have been called at a time when at least six PTI members were abroad and the election commission had also not notified members on the reserved seats despite LHC orders.

Published in Dawn, July 1st, 2022

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