The Supreme Court on Monday rejected the coalition government’s request to form a full court bench on petitions related to the recently held Punjab chief minister’s re-election — including a review of its interpretation of Article 63-A.
The short order was announced after a marathon hearing that began at 1pm and lasted more than eight hours, during which time a three-member bench comprising Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar heard the arguments of government and its allies’ counsels, who repeatedly urged the top judge to constitute a full bench and prevent the case from being politicised.
The request for the full bench was made by the government during the hearing of a petition filed by PML-Q leader Chaudhry Parvez Elahi challenging Punjab Assembly Deputy Speaker Dost Mohammad Mazari’s decision in the chief minister’s re-election last week, which led to Hamza Shehbaz’s victory.
During the re-election, Mazari had decided against counting the votes of 10 PML-Q lawmakers, which were cast in Elahi’s favour, citing a letter written by PML-Q President Chaudhry Shujaat Hussain in which he had instructed them to vote for Hamza instead.
During the previous hearing on Saturday, they had allowed Hamza — who was re-elected on July 22 — to remain “trustee” chief minister till Monday (today).
As the arguments were made inside the court, outside it, members of the government — including Interior Minister Rana Sanaullah and Law Minister Azam Nazir Tarar — made it clear that they would boycott the court proceedings on the matter, if their request for a full bench was turned down.
Here are the main developments of the hearing:
- CJP Bandial remarks party head will have to listen to the parliamentary party’s opinion.
- CJP says full bench is formed only in serious matters and that currently only two more judges are available
- Justice Ahsan says parliamentary party decides who to vote for in the assembly.
- Justice Ahsan observes deputy speaker exceeded court’s interpretation in his ruling.
- Court says facts in re-election case different from case on dissident MPAs.
- PTI lawyer contends judicial interpretation of Article 63-A was clear and unambiguous.
- “Trustee” Punjab CM Hamza Shehbaz requests court to constitute a full bench to hear Elahi’s petition, clubbed with the review of SC’s interpretation of Article 63-A.
The court twice took breaks during the hearing to deliberate, with the CJP. When the hearing resumed after the first break, Law Minister Azam Nazir Tarar drew the court’s attention on the fact that Article 63-A’s review had still not begun. “This is a grave matter. This is a province of 12 million [people].”
The chief justice reminded the law minister that it was a five-member bench that had “sent the [previous] prime minister home”, referring to the court’s unanimous verdict in March that had restored the National Assembly as well as the no-trust move against Imran Khan, which eventually led to his ouster.
With the federal government, in its statements outside the court, threatening to boycott the case if a full bench was not formed, the chief justice said: “If the incumbent government is not accepting the Supreme Court’s [supremacy] then it is a grave [concern].”
The minister said that forming a full court would increase the judicial credibility of the court.
Meanwhile, Deputy Speaker Dost Muhammad Mazari’s lawyer Irfan Qadir referred to Justice Qazi Faez Isa’s case, which he said was heard by 10 judges. “That was the matter of a judge. This is the matter of an entire province.”
“I am not saying that the [bench’s] neutrality is in question,” he clarified, adding that if a full court was constituted, “the respect and confidence in court” would increase.
“There is an impression that [certain] cases go to the same bench,” he added.
“A full court bench is constituted in serious matters,” the top judge replied.
At one point, the CJP remarked that there was no need to prolong the case. “In our view, the deputy speaker has violated Article 95.”
Mazari’s lawyer argued that the Supreme Court Bar Association’s (SCBA) petition on Article 63-A’s review could not be separated from the re-election case.
He reasoned that if the court ruled that the votes of dissidents lawmakers would be counted, the matter would get even worse.
“Along with the politicians, the judiciary should also be united in its decisions,” he pointed out, clarifying that he was not critiquing the court.
“We will all leave but the Constitution should remain supreme,” the lawyer added.
The deputy speaker’s counsel said there was a difference between the head of the party and the head of the parliamentary party.
“The party that wanted to make Parvez Elahi the chief minister used to call him a dacoit,” he said while referring to PTI Chairman Imran Khan’s remark about Elahi from years ago.
“There is an impression that the court was tilted towards those who broke the Constitution and pushed the country towards destruction,” he said.
At this, the chief justice remarked that “social media only listens to narratives, not facts”. “We gave a chance to all the parties in this case to make their arguments,” he said.
In this case, he said, “we just have to see if the party leader can overrule the decision of the parliamentary party.”
“The parliamentary party represents the common man in the assembly,” he observed, noting that the 18th Amendment had given powers to the parliamentary party.
“We have to strengthen the democracy and parliament, and not individuals,” he remarked.
PPP’s counsel Naek interjected that it was also to be seen if the matters of the parliament could be taken to court.
The CJP replied: “When the Constitution is broken in the parliament, matters will come to the court.”
At one point, Justice Ahsan remarked: “The only question is that if the deputy speaker misinterpreted our decision, we will have to correct him.”
Naek reiterated that the court should not intervene in the matters of the parliament.
“What is good for the goose is good for the gander too.” the judge replied, adding that the court had a legal question in front of it.
Subsequently, PML-Q lawyer Salahuddin took the rostrum and said: that in his opinion “instructions to the parliamentary party are given by the party head,” as he also urged the formation of a full court bench.
Justice Akhter said that every member of the parliamentary party was important, emphasising that the party should not be under the “dictatorship of its head”.
“Decision are taken with the consultation of the parliamentary party,” the judge said.
The PML-Q counsel said the decision on the vote belonged to the party head and the party, insisting that the court should benefit from the insight of the full court.
Here, Justice Akhtar interjected and asked the lawyer why he kept bringing up the matter of the full court.
Full bench not possible before September: CJP
At one point, Justice Bandial remarked that the full court court could only be constituted in September. “Should we stop everything until then?”
“We can’t abandon the most important matter of the state. We can’t leave the matters of the Constitution and the public interest hanging [in the middle],” he said.
The chief justice said that every citizen, and even the court, was worried about the economic situation. “Is this state of the economy because of the court or because of instability?”
“Today, the one who took more votes is out and the one who took less is the chief minister. Retaining Hamza Shehbaz would require a solid foundation,” he said.
The chief justice said he wished to dispose off the case quickly and that the court only had two more judges available at the moment.
Salahuddin suggested that judges could hear the cases through video link.
The CJP said the court had mediated even before the CM elections, adding: “we had retained Hamza Shehbaz till by-elections and he played an excellent role during the elections.”
“Now the result of the chief minister’s election should be respected,” he stressed.
Salahuddin said the people were already aware of both the Sharifs’ and Chaudhrys’ governance and “no sky would fall” if either were in power.
However, he said, if the public perception was formed that only a select few judges deal with important political matters then that would “certainly be akin to a sky falling”. He again prayed for the formation of a full bench.
At this point, the court took another break.
‘Party head also has to listen to parliamentary party’s opinion’
Earlier in the hearing, the chief justice had remarked that the party head “will also have to listen to the parliamentary party’s opinion”.
There was a flurry of activity even before today’s hearing began as the coalition government reiterated its demand for the formation of a full court bench to hear cases related to hear the case related to the Punjab chief minister’s election.
At the same time, an Islamabad police official said only leaders of respondent parties would be allowed to enter the court premises with the permission of the SC administration.
He added that lists of leaders had been provided by political parties in this regard. “No rally, procession or gathering will be allowed in the Red Zone, including around the Supreme Court.”
After hearing arguments on the constitution of a full bench from the counsels of the deputy speaker, Hamza, PML-Q and PTI, the court adjourned the hearing for 1.5 hours so the judges could deliberate on the matter.
Former SCBA chief asks for full bench
At the outset of the hearing, the bench called former Supreme Court Bar Association (SCBA) president Latif Afridi to the rostrum.
The chief justice observed that several former SCBA presidents were present in the courtroom. The ongoing case was directly related to the SC’s interpretation of Article 63-A, he remarked.
Afridi said the country’s current political situation was “very complicated”.
“Our former presidents held a meeting. The SCBA’s petition for review [of the Article 63-A interpretation] is pending adjudication,” he informed the court.
Meanwhile, Afridi pointed out that cases challenging the Election Commission of Pakistan’s (ECP) decision to de-seat lawmakers over defection were also being heard.
A full-court bench should be formed to avoid a constitutional crisis, he requested the court. “The crises are deepening. The entire system is at stake.”
He requested the SC to form a full-court bench to hear all the cases together.
The deputy speaker’s lawyer, Irfan Qadir, also requested the court to constitute a full bench. At this, the CJP asked him the grounds on which a full court bench should be constituted.
Qadir requested the bench to read paragraphs one and two of its decision on the presidential reference seeking interpretation of Article 63-A, stating that everything would then be clarified.
“We aren’t here to fight,” he added.
‘Difference between political party and parliamentary party’
Article 63-A could not be read individually, Qadir argued. “The party head issues instructions to [members of] a political party.
“Political parties have an important role in parliamentary democracy. The democratic system can be endangered due to the weakness of political parties,” he continued.
Qadir termed defection from party policy a “cancer”.
Justice Ahsan observed that only the members who were part of the assembly were included in the parliamentary party. “There is a difference between political party and parliamentary party,” he remarked.
The judge questioned whether the same person could issue a declaration as well as instructions to the parliamentary party.
He remarked that the Constitution was clear regarding the declaration of defection.
Hamza’s lawyer, Mansoor Awan, informed the court that he had already submitted his client’s statement.
The chief justice asked which part of the SC verdict the deputy speaker referred to in his ruling. “Where is the paragraph on which the deputy speaker relied upon?”
Justice Ahsan also asked the same question to which Hamza’s lawyer replied that as per the SC’s verdict, votes cast against party policy would be rejected.
Justice Ahsan then asked if the party leader could also be the head of the parliamentary party.
Awan told the court that the deputy speaker’s ruling had relied on paragraph three of the SC verdict.
‘Parliamentary party’s authority’
Justice Akhtar observed that Article 63-A had been made part of the Constitution through the 14th Amendment and asked the counsel to present his legal arguments regarding the party head.
Awan responded that the 18th Amendment had further elaborated on Article 63-A. “According to the verdict of [former] justice Sheikh Azmat’s eight-member bench, all the decisions are taken by the party leader,” he said.
However, Justice Akhtar said that there were two rules to cast votes in accordance with the party policy. “Prior to the 18th Amendment, Article 63-A used to refer to the party head’s instruction.
“After the amendment, the party leader was replaced by the parliamentary party,” he observed.
The judge stated that there was ambiguity about the powers of the parliamentary party and the party chief prior to the amendment. “Following the amendment, according to Article 63-A, the parliamentary party was given the authority to issue directions,” Justice Akhtar observed.
Justice Akhtar observed there were rules to declare that a decision was against the Constitution.
Hamza’s lawyer contended that the court’s ruling on Article 63-A was contradictory to its previous decisions and reiterated that a full-court bench should be constituted.
“If a five-member bench feels that the previous decision of the court was incorrect, then a full bench can decide,” Awan said.
‘Party head’s dictatorship’
The chief justice recalled that a senior parliamentarian had informed the court during the hearing on the presidential reference that the party head could also be a ‘dictator’ which is why his role had been reduced and powers given to the parliamentary party instead.
“There are hereditary parties in Pakistan. How can a leader residing abroad issue instructions?” he asked.
Separately, Justice Ahsan observed that the Constitution empowers parliamentary representatives. The parliamentary party decides who to vote for in the assembly, he added.
“We protected the assembly members from the party head’s dictatorship in the presidential reference. Several members complained about the party head’s dictatorship,” Justice Bandial remarked.
“The party head will also have to listen to the opinion of the parliamentary party.”
Awan pointed out that the heads of four political parties were not part of the parliamentary party. “JUI-F is named after its head. Maulana Fazlur Rehman (its chief) is not part of the parliamentary party.
“The party head is answerable to the public, not the parliamentary party head,” he argued.
Justice Ahsan remarked that the party head’s role is very important. “It is the party head who decides to send the declaration against defecting members. The parliamentary party will give instructions on who to vote for and the reference is sent by the party head.”
He further remarked that a political party in essence is the same as its parliamentary party. “Those who are elected to the assembly by the public are the ones with the mandate.”
Justice Ahsan referred to the United Kingdom’s system, in which he said the party head had no role in the parliament.
‘Deputy speaker exceeded court’s interpretation’
Justice Ahsan remarked that the deputy speaker, while accepting the court’s decision as correct, referred to it in his ruling.
The deputy speaker’s lawyer, Irfan Qadir, said Mazari had referred to the verdict to the extent of rejecting the votes.
“This means that to the extent that the votes were rejected, the court’s decision was recognised,” the judge noted, adding that the court’s question was limited to whether the deputy speaker’s interpretation of the verdict was correct.
He also observed that the deputy speaker had “exceeded” the court’s interpretation in his ruling.
Awan recalled that the ECP had accepted PTI chief Imran Khan’s instructions during the previous election.
Justice Ahsan questioned what connection the electoral body had to the case. However, the chief justice asked Awan to read out the ECP’s verdict.
Awan recalled that during the first election, Imran had issued directives to PTI members to vote for Elahi. When they had not done so, the ECP had de-seated them for not following Imran’s instructions, he told the court.
The counsel also presented a copy of Imran’s directives to the court.
Justice Ahsan remarked that there was a difference in the cases related to the previous election and the recent one. “The position of the MPAs in the ECP was that they had not received any party instructions,” he observed.
But, the judge continued, in the present case, the MPAs were saying that the parliamentary party had decided to vote for Elahi and no one had raised any objection.
The facts in this case and the one related to dissident MPAs were different, Justice Ahsan remarked, reiterating that the dissident lawmakers had said that they did not receive any directives or showcause notices.
“But the issue here is different,” he said. “All the 10 members cast their votes. No one voted for the other side. None of the 10 members said that the parliamentary meeting was not held.”
Awan responded that the party policy was in essence the parliamentary party’s instructions.
Awan pointed out that if the court accepted the appeal of the de-seated MPAs against the ECP’s verdict, the numbers in the assembly would change.
“Hence, it is requested that the cases should be clubbed together and heard by a full bench,” he reiterated.
When the PML-Q president’s counsel, Salahuddin, sought to begin his arguments, the chief justice pointed out that his client had not been made a respondent in the case yet and asked him to furnish arguments on the formation of a full bench.
Salahuddin told the court that his client also wanted a full bench to hear the case.
‘Court’s interpretation unambiguous’
The court then asked PTI’s counsel, Ali Zafar, to argue on the formation of a full bench.
Zafar recalled that Elahi secured 186 votes, while Hamza got 179 votes. “According to Article 130, Parvez Elahi should be the chief minister.”
He argued that the deputy speaker had not mentioned Shujaat’s letter prior to the voting but showed it at the time of the ruling. He then proceeded to read out the ruling.
However, the CJP directed Zafar to give PTI’s reasons against the formation of the full-court bench.
The lawyer responded that Article 63-A was clear. “The head of the party has to issue the declaration in accordance with the parliamentary party’s instructions.
“The court has already issued its detailed interpretation on Article 63-A after several hearings earlier,” he said, emphasising that accepting the instructions of the parliamentary party was part of democracy.
Zafar said that even those who object to the instructions issued during the party meeting were bound by the party’s decision.
“There is no place in the Constitution for dictatorship by a political party’s head,” he argued, adding that Article 63-A and its judicial interpretation were very clear and unambiguous in this regard.
The decision to form a full bench lay with the chief justice, Zafar said. “In 15 previous cases, the chief justice refused to form full courts,” he said.
“The court has to stop hearing other [cases] if a full bench is formed. Should the court stop all other work to hear one case?”
Furthermore, Zafar argued that the government wanted Hamza to stay “temporary CM” for as long as possible.
“The court had wrapped up the no-confidence vote case in four days. Clubbing other cases with this one will just waste time,” he said.
The lawyer also stated that linking the case with the appeals of dissident lawmakers would be unfair, stressing that a quick decision was important to counter the crisis in the province.
“The review petitions can only be heard by a five-member bench,” he said, adding that the nation had complete trust in the court.
Subsequently, the bench adjourned the hearing for 1.5 hours.
In the last hearing on Saturday, the court had summoned the deputy speaker but his lawyer had come in his place. The SC had also issued notices to Hamza, Attorney General of Pakistan Ashtar Ausaf, Punjab Advocate General Shahzad Shaukat and the province’s chief secretary.
It ruled that Hamza should work as per the Constitution and law during the time period. “As the chief minister, Hamza Shehbaz will not use his powers for political gains,” it stressed.
Separately, at one point during the hearing, Justice Bandial remarked that prime facie, the deputy speaker’s ruling was against the apex court’s verdict in the Article 63-A reference.
Will boycott proceedings if full court not formed: Sanaullah
Outside the court, Interior Minister Rana Sanaullah warned that the coalition government would “boycott the SC’s judicial proceedings” if a full court bench was not constituted.
“In that case, Hamza will no longer stay party in the case,” he said, asserting that PML-N didn’t want to be a part of the “complication” that would arise from the situation.
Talking to the media alongside Law Minister Azam Nazir Tarar and Punjab government spokesperson Atta Tarar, he said that the verdict on the interpretation of Article 63-A was a “rewrite of the Constitution”.
He explained that the Constitution had a scheme which included the matters of casting votes, counting them, the declaration of defection, the ECP’s decision and the SC appeal. “But a part [of the scheme] has been made dormant and it is being said that the votes can’t be counted.”
The minister went on that 99pc of the legal community was against this. “The SCBA had filed a petition against it and if the ruling on it comes otherwise, it will overturn the ruling on the dissident MPAs and Hamza’s appointment in the first election will be upheld.”
Hence, he added, we request the court to club the review petition with other pleas to “prevent complications”, adding that the move would restore the nation’s confidence in the apex court.
Separately, Hamza’s lawyers submitted a concise statement on his behalf today, which noted that the votes of PML-Q MPAs in Elahi’s favour were disregarded on the basis of party president Chaudhry Shujaat Hussain’s letter.
It also referred to the previous chief minister’s election, held on April 16, in which the PTI had issued similar instructions to its lawmakers. The 25 lawmakers, who had not voted in line with the party’s instructions, had been disqualified by the Election Commission of Pakistan (ECP) and their appeals were pending adjudication, it added.
“This honourable court has held that the party head enjoys a central and decisive role within the party, in the electoral process and in the parliament through parliamentary party which he directly controls and superintends … he has the direct power, influence and control over how the party shall act and function within and outside parliament.”
The statement said that the PTI’s instructions ahead of the first chief minister’s election, which were upheld by the ECP, and the SC’s judgement had formed the basis for the deputy speaker’s ruling.
The Supreme Court had not yet determined the validity of the ECP’s decision, which, combined with Article 63-A (related to disqualification of lawmakers over defection), “justified” the deputy speaker’s ruling, it said.
The statement further noted that if the apex court sets aside the ECP’s decision to disqualify the 25 MPAs, “the effect of that would be the declaration of defection given by party head of PTI dated 18.04.2022 would also be set at naught.
“As a consequence, the 25 votes would not stand excluded from the votes polled to [Hamza] in the first poll held on 16.04.2022. Resultantly, [Hamza], who had received 197 votes (more than 186 required in the first poll i.e. majority of total membership of the provincial assembly of Punjab), would be the duly elected chief minister, Punjab and the consequent second poll dated 22.07.2022 would be disregarded.”
The statement requested the court to constitute a full bench to hear together Elahi’s petition, the petition seeking a review of the SC’s interpretation of Article 63-A and appeals against the ECP’s decisions.
It also requested the court to dismiss Elahi’s petition.
PML-Q, PPP and JUI-F file petitions
Earlier today, the PPP, Jamiat Ulema-i-Islam-Fazl (JUI-F) and PML-Q filed separate petitions requesting the apex court to allow them to become parties in the case.
A petition filed on behalf of the PML-Q and its head Chaudhry Shujaat Hussain stated that instructions had been issued to all MPAs to vote in Hamza’s favour and a letter in this regard had also been sent to the deputy speaker.
Contrary to the orders, the MPAs had cast votes in Elahi’s favour which were disregarded by the deputy speaker, it noted.
“The petitioner (Elahi) has filed the instant petition challenging the ruling of the deputy speaker Punjab Assembly but has, for reasons best known to him, not impleaded the interveners who are the most important and necessary parties.”
In its petition, the JUI-F stated that the SC’s decision to summon Deputy Speaker Mazari “which was unprecedented and demeaning” to the office he holds.
“To curtail the powers of a constitutional office of chief minister through an interim order and that too without a constitutional or legal backing, will set a bad precedent for the constitutional courts and further deteriorate harmony among institutions.”
The petition also requested the apex court to constitute a full bench to hear the petition.
Separately, the PPP stated in its petition that since seven of its MPAs had voted for Hamza in the re-election, the party would be affected by the court’s decision on the petition and thus, should be allowed to become a respondent in the case.
“Refusing to hear the applicant would be oppressive to judicial conscience and would cause a perpetuity of injustice which would not be tolerated by a just judicial system.”
During the election on Friday, Mazari rejected all 10 votes cast by the PML-Q on the pretext that they had violated the orders of their party chief, Chaudhry Shujaat Hussain, citing a letter he received from the patriarch which said he was asking his party lawmakers to back Hamza.
After counting the polled votes, the deputy speaker announced that Elahi bagged 186 votes, while Hamza could get 179 votes. However, he refrained from declaring Elahi the chief minister.
Instead, he indicated that as party chief, Chaudhry Shujaat Hussain’s instructions to PML-Q members to vote for Hamza instead of Elahi held greater sway.
The deputy speaker then announced that Hamza had won the election of chief minister, since the 10 deducted votes reduced Elahi’s tally to 176, while Hamza remained on top with 179.
In his petition, Elahi has requested the court to hold the deputy speaker’s ruling leading to Hamza’s re-election as “bogus and false”.
“Hamza Shehbaz may kindly be declared disqualified as the Punjab chief minister/ member of the provincial assembly,” the petition read.
It requested the court to declare the deputy speaker’s decision to discard the votes of 10 PML-Q lawmakers on grounds of Article 63-A of the Constitution as “unconstitutional”.
Instead, the petition said, the court may declare Elahi the “lawful returned candidate” and the PML-Q leader be allowed to take oath as the Punjab chief minister.
The petition further stated that Hamza should be restrained from taking the oath as the chief minister. It is pertinent to mention that Hamza had already been administered the oath of office by Punjab Governor Baleeghur Rehman earlier on Friday.