Big blow to PML-N's Hamza as SC strikes down deputy speaker's ruling; Elahi to take over as Punjab CM
The Supreme Court on Tuesday struck down Deputy Speaker Dost Muhammad Mazari's ruling on Punjab chief minister's election, declaring his "understanding and implementation" of Article 63A(1)(b) of the Constitution "incorrect and erroneous" as it announced the highly anticipated verdict on PML-Q leader Chaudhry Parvez Elahi's petition.
The verdict delivered a big but expected blow to the coalition government as it saw PML-N's Hamza Shehbaz lose his status of the "trustee" chief minister, while his rival Parvez Elahi, who had PTI's backing, will now take over the position as per the top court's order.
A three-member bench comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial and Justices Ijazul Ahsan and Munib Akhtar announced the decision.
During the election, Mazari, the deputy speaker, had decided against counting the votes of 10 PML-Q lawmakers, which were cast in Elahi’s favour, citing a letter written by party President Chaudhry Shujaat Hussain in which he had instructed them to vote for Hamza instead. That decision had tipped the balance in Hamza's favour — an advantage the SC reversed in its verdict tonight.
The top court, in its short order, a copy of which is available with Dawn.com, declared all the appointments made by Hamza "illegal" and told the members of his cabinet to vacate their offices.
All of the advisers and assistants appointed by Hamza were also ordered to be relieved of their duties.
The top court ordered for the issuance of Elahi's notification as the new Punjab chief minister immediately, also instructing the governor to take his oath at 11:30pm tonight.
In case the governor does not administer oath to Elahi, President Dr Arif Alvi can do so instead, the court ruled.
A notification was later issued from the Punjab government's cabinet wing declaring Elahi as Punjab's chief minister, while a press release from the President House said Elahi's oath would be administered by President Alvi at 2am in Islamabad.
Ahead of the verdict, JUI-F leader Maulana Fazlur Rehman paid the PML-Q chief a visit at his residence in Lahore.
Earlier today, the counsel for Punjab Assembly Deputy Speaker Dost Mohammad Mazari, Irfan Qadir, informed the Supreme Court that his client had instructed him not to participate further in the case proceedings and he would instead file a petition for review of the court's decision not to constitute a full bench.
PPP counsel Farooq H. Naek also declined to participate in the court proceedings. However, they both stayed in the courtroom and watched the proceedings.
The ruling coalition had said yesterday it would boycott the proceedings in protest.
Meanwhile, PTI leader Fawad Chaudhry, while talking to media persons outside the apex court's Lahore registry, said that the SC should not be burdened with "political matters".
"The PML-N should have accepted its defeat and separated from the government after the [Punjab CM] election," he said, adding that this matter should never even have been brought to court.
Addressing a press conference soon after the verdict was announced, Information Minister Marriyum Aurangzeb lambasted it as a "judicial coup".
She also decried what she said were "double standards" in how letters by PTI Chairman Imran Khan and PML-Q chief Chaudhry Shujaat, for instructions to their MPAs for chief minister elections, were treated.
She said Imran's letter was acceptable and 25 MPAs were defeated because of it while Shujaat's letter was considered "haram".
Aurangzeb said this was the precise reason why the government and its coalition allies had demanded a full court bench, adding that justice was not seen to be done since the current bench was formed.
She said the Constitution was being interpreted based on personal preferences.
"This decision is akin to a judicial coup and will push the country and people further towards instability, anarchy and division."
The information minister said it did not matter if Hamza was the chief minister or not since Punjab's mandate belonged to the PML-N.
She said it would not be allowed that a court's decision appoints a person for Punjab chief minister's role who did not even have the province's mandate.
'Pakistan subjected to mockery'
PML-N supremo Nawaz Sharif said Pakistan had been subjected to mockery. In veiled criticism with hint of sarcasm, the party founder wrote: "salute to the three judges".
The opposition camp, meanwhile, breathed a sigh of relief as PTI leader Fawad Chaudhry said the Supreme Court '"restored" the Constitution with its ruling and termed it a victory for democracy.
Senior PTI leader Shireen Mazari said the apex court's verdict was a "reversal of US regime change conspiracy".
'Court not convinced for full bench'
During the hearing today, the chief justice remarked that the bench had not been provided with even one legal argument in favour of constituting a full bench during yesterday's hearing. "You asked for time which is why the hearing was adjourned," he told Naek.
"Remain in the court and watch the proceedings. The legal question has not been answered yet," he added.
Justice Bandial said the question was whether the party head could issue instructions to the parliamentary party. "According to the law, the parliamentary party makes the decision [who to vote for]. The party head can send a reference in case of deviation from the party policy.
"A full-court bench cannot be formed for this question."
The chief justice said lawyers for all sides had been given time to present their arguments. The Supreme Court had dismissed the caretaker cabinet in 1988, the CJP continued, adding that the chief executive was the head of the cabinet.
"We want to wrap up the matter of Punjab chief minister as soon as possible. We could not be convinced to [constitute] a full bench."
He iterated that a full bench could not be formed till the second week of September and said the court would now hear arguments on the case's merit. "There is a crisis in the province because of this case. Further delaying tactics will not be tolerated," he cautioned.
Justice Bandial said that the 21st Amendment was brought up during the hearing. “[Then] Justice Azmat Saeed had observed regarding the 18th Amendment that vote would be cast in accordance with the party head's instructions.”
However, he noted that the present case was different and the court would need assistance.
He also remarked that the presidential reference on Article 63-A did not include the question of who would give the instructions. “At the time of the interpretation, the question was only about the consequences of defection.”
The CJP went on that if someone had comprehended the Constitution incorrectly, the interpretation could be cancelled.
“Misinterpreting the Constitution means that the Constitution has not been understood correctly,” he said, adding that out of 17 judges, eight had given their opinions on the 21st Amendment.
“But this is not the majority’s decision because a majority of nine judges is required,” the chief justice observed, adding that back then, the bench comprised 17 judges.
Separately, the CJP reiterated that he wanted to wind up the case at the earliest because of issues of governance and the crisis in Punjab.
The chief justice questioned whether the Supreme Court could be bound by the decision of eight of its 17 judges. "The majority of the full-court bench did not agree with the party head issuing directions," he observed.
"Those who boycotted court proceedings have shown enough grace to sit and watch them," he remarked.
He then directed Parvez Elahi’s lawyer, Ali Zafar, to assist the court in legal matters.
The lawyer said that the court had heard detailed arguments yesterday. “The matter here doesn’t concern the interpretation of Article 63-A.
“The court has already interpreted it before. Here, the matter concerns the directions of the party head,” Zafar said.
He pointed out that as per the 18th Amendment, the party head was given the power to take action against dissident members.
Elahi's counsel's arguments
Zafar said that in the judgement regarding the 21st Amendment, then Justice Jawad Khawaja had declared Article 63-A against the Constitution. “He was of the opinion that the law stops members from voting freely.
“But he didn’t include the reason of his opinion in the verdict,” he recalled, adding that he did not agree with the judge's opinion.
A parliamentary party and the party leader were “two different things”, the counsel contended.
Justice Ahsan remarked that as per the Constitution, the party head ensured implementation of the parliamentary party's decision.
Meanwhile, Justice Bandial said that the parliamentary party did not take decisions on its own. “The political party's decision is communicated to the parliamentary party, which in turn, takes its decision keeping that in view."
He then asked Zafar: “What does the law say? On whose instruction should the vote be cast?”
The lawyer replied that the Constitution states directions regarding the vote were issued by the parliamentary party.
The chief justice then asked whether the parliamentary party was separate from the party head.
Zafar responded that during the tenure of former military dictator Pervez Musharraf, a law was introduced that empowered the head of the parliamentary party, instead of the party chief. “But that law was repealed through the 18th Amendment,” he said.
Meanwhile, Justice Akhtar asked about the definition of the party chief. “Is the party chief only the head of the political party?”
Justice Ahsan also inquired: “Where was the word parliamentary leader used?”
Zafar said that in 2002, parliamentary party was mentioned in the law concerning political parties.
Justice Ahsan stated that the word “parliamentary leader” instead of parliamentary party was a mere mistake.
Meanwhile, Additional Attorney General Amir Rehman said he would assist the court in accordance with Article 27 of the Constitution.
Subsequently, PTI's counsel Imtiaz Siddiqui began his arguments.
The chief justice recalled that Chaudhry Shujaat Hussain's lawyer had informed the court that a letter was sent to all party MPAs with clear instructions.
Siddiqui responded that the way voting was done for the re-election was in front of the court. The federal government had utilised all its resources and all party chiefs were present in Lahore at the time, he claimed.
The party chief's letter should arrive in time, he pointed out.
The chief justice said the court would reach its decision in a "better way" if the counsels for all parties assisted the bench and asked those who had decided to boycott proceedings — Mazari and PPP's counsels — to rethink their decision.
Subsequently, the hearing was adjourned till 2:30pm.
Deputy speaker's ruling and ECP verdict
When the hearing resumed after the break, Ali Zafar took the stand and contended that the matter of the provincial chief executive has been under discussion for three months.
"All the PML-Q lawmakers knew which candidate to vote for," he said. He also pointed out that the apex court had previously decided that a person who had been disqualified could not be the party head.
The Supreme Court has decided that an ineligible person cannot become the party chief, he pointed out.
Referring to the decision in a case concerning the PML-N supremo, he said that the judgement did not say that directions had to be issued by the party head. In 2018, the SC had debarred Nawaz Sharif from his position as PML-N party head under Article 63-A of the Constitution due to his disqualification.
Justice Bandial stated that arguments had been made on the important role of a party head. In the Nawaz case, the court said that the party head controls the political party.
Zafar also pointed out that no one was disputing the importance of the party head. "The party head can issue directives to the parliamentary party head but cannot dictate him," he said, adding that the latter had to decide who to vote for.
Justice Ahsan also observed that another respondent had pointed out in the ECP de-seating case, the electoral body had been concerned with the party chief's directives. If the ECP's decision was set aside, Hamza's tally would rise to 197, as per the respondent's argument, the judge noted.
Zafar argued that the SC had specified the party head's directions in the Ayesha Gulalai case. Howver, Justice Ahsan noted that the Ayesha Gulalai verdict was contradictory to the stane adopted by the counsel's client.
"The case is contradictory to my client's [stance] but is in accordance with the Constitution. The question then was also related to defection."
The chief justice then asked Zafar whether the judgement in the Ayesha Gulalai case specified who would issue instructions to cast the vote to which the counsel replied that it stated the party head or his nominated representatives could send the reference against a defected parliamentarian.
When the CJP pointed out that Mazari's counsel had referred to the ECP verdict, Zafar responded that the verdict was not mentioned in the deputy speaker's ruling.
"The deputy speaker's statement indicates that the party head's role is more important. He based his ruling on the ECP verdict. The ECP cannot give any decision in contradiction to Article 63-A," the chief justice observed.
Zafar argued that neither was the deputy speaker's ruling in accordance with the ECP verdict, nor was Mazari bound by it.
However, the CJP noted that the ECP verdict was brought up in yesterday's hearing as well. "Under which law is the SC bound by ECP's verdict?" he asked to which the counsel replied that there was no such law.
Meanwhile, Justice Ahsan noted that a lot of developments had occurred after the ECP verdict. The court had been assured that the run-off election would be held after the Punjab by-elections. he added.
At this, the chief justice questioned whether an objection could be raised so the hearing was halted until the apex court had announced its decision on the appeals of former lawmakers who were de-seated by the ECP. Zafar replied there was no objection to hearing those appeals first "in principle".
The chief justice noted that Advocate General Punjab Shahzad Shaukat had attempted to interpret Article 63-A in his response submitted to the court.
"The attempt is good but incorrect," Justice Bandial observed. "The matter of Article 63-A's interpretation has been settled. There is no need for further interpretation."
He noted that the question was how the deputy speaker's ruling was in line with the SC verdict. The second question was whether the party head or the parliamentary party head issued directions for voting, he added.
Additional Attorney General Amir Rehman said the SC, in its short order, had said defectors' votes would not be counted. "There was no detailed discussion about the party head and parliamentary party."
Justice Bandial then asked what the judicial ambiguity was to which Rehman replied that details had not been issued.
However, Justice Akhtar said there was no ambiguity. "It is clear who the party head is and who the parliamentary party head would be."
Rehman countered that unless declared illegal or reviewed, the decision of the eight judges would be followed regarding directions issued by a party head.
However, Justice Akhtar said the additional attorney general's arguments were "strange and nonsensical". "There was no question regarding voting in that case," he noted.
Separately, the chief justice observed that the opinion of judges regarding the 18th and 21st Amendments was not applicable to the present case.
When the additional attorney general argued that they were applicable in the case, Justice Akhtar told him his arguments were inconsistent.
"If the deputy speaker had the decision regarding the 21st Amendment in mind, he should have written it [in his ruling]," Justice Akhtar said.
"The deputy speaker is not a legal expert" Rehman argued.
Justice Akhtar said that it was important to empower the parliamentary party in accordance with Article 63-A. "Strengthening the parliamentary party is akin to strengthening parliamentary democracy."
Subsequently, the court reserved its decision.
Mazari to file review petition
Talking to media persons outside court, Irfan Qadir, the deputy speaker’s lawyer, said that his client had decided against participating in the case further.
“There has been an unprecedented boycott across the country against the apex court’s verdict [on the full court bench],” he told reporters. “My client has decided to exercise the constitutional right and [file a] plea for a review of yesterday’s decision.”
Qadir said that he was hopeful the review petition would be fixed before a full-court bench, or one separate from the three-member bench. “And I am sure the case will be heard on the grounds of merit.”
Referring to Justice Qazi Faez Isa’s case, he said that a nine-member bench was formed to hear the matter of one judge. “Why is a three-member bench hearing the matter which concerns the entire country?”
The Supreme Court, he added, had no right to interfere in the matters of the Parliament. “It should rather strengthen and stabilise it and vice versa.”
Addressing a press conference today, Punjab Home Minister Ataullah Tarar emphasised on the government's demand for a full court bench.
He stated that the party's lawyers did not participate during today's proceedings, adding that a full court bench would only enhance the SC's respect. "I think the law should be equal for all," he said, adding that justice could not be served without the constitution of a full-court bench.
During the hearing on Saturday, the court had allowed Hamza — who was re-elected on July 22 — to remain “trustee” chief minister till July 25.
Yesterday, the government requested the constitution of a full bench.
The plea was, however, rejected as the CJP ruled that the full court would mean the hearing of the case would not resume before September due to unavailability of judges amid current vacation.
“But we can’t allow such state of affairs to drag and prolong,” Justice Bandial had said.
Subsequently, to register its protest against the SC's decision, the ruling alliance in a late-night conference announced that it will boycott the judicial proceeding.
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.
Additional reporting by Naveed Siddiqui and Ali Waqar.