Farooq Naeem—AFP
The Supreme Court of Pakistan on Tuesday declared Punjab Assembly Deputy Speaker Dost Muhammad Mazari’s ruling on the provincial chief minister’s election “illegal” and declared that the Pakistan Tehreek-e-Insaf and Pakistan Muslim League (Quaid)’s joint candidate Pervaiz Elahi as the new chief minister of Punjab.
In an 11-page short order, a three-member bench of the apex court said: “We find that the understanding and implementation of the said short judgment as well as the provisions of Article 63A(1)(b) of the Constitution by the Deputy Speaker, Provincial Assembly of Punjab, Lahore was patently incorrect and erroneous and cannot be sustained.” Describing the act as a subversion of the governance of Punjab, it set aside the deputy speaker’s ruling and declared it “void, without lawful authority and of no legal effect.”
The order went on to declare Elahi the elected chief minister of Punjab, noting he had obtained 186 votes to Hamza’s 179 and said the oath of office administered to Hamza was “without lawful authority and of no legal effect.”
As a consequence, read the judgment, all actions taken by Hamza as chief minister, including the formation of his cabinet, were without lawful authority and of no legal effect.
The bench—Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Munib Akhtar—also ordered Punjab Governor Balighur Rehman to administer oath of office to Elahi at 11:30 p.m., adding that if he could not perform his duties, President Arif Alvi would administer the oath.
The ruling was marred by controversy after the ruling coalition boycotted proceedings following the court’s refusal to form a full bench to hear petitions related to application of Article 63A of the Constitution. The respondents had maintained that the deputy speaker’s ruling was in line with the Supreme Court’s own judgments, which had repeatedly granted authority to the party head to decide the lines on which the party should vote in the election for chief minister.
Referring to the court’s 2015 ruling on the 18th Amendment, the judgment—authored by the CJP—maintained that the original verdict had not dealt with the “particular point” on whether the party head could give any directions on voting during key legislative matters. “Therefore, on this point the judgment being relied upon does not constitute binding precedent,” it said. On the issue of the CJP himself being one of the judges who had backed the earlier view of granting authority to the party head, Justice Bandial wrote that the earlier judgment had “no relation with the question of vires of Article 63A of the Constitution that was under consideration.”
Defending the reversal of the CJP’s earlier stance, the judgment states: “[If] a judge has unconsciously followed an incorrect view of the law, he has by conscious application of mind the freedom to adopt the correct view of the law subsequently.” Further, it said, the incumbent CJP had not considered Article 63A at length in the earlier judgment. “This reflects the insignificance of the said constitutional provision as evidenced also by the opinions of Chief Justice Nasirul Mulk, Justice Asif Saeed Khan Khosa and Justice Ejaz Afzal Khan, which also did not consider Article 63A of the Constitution.”
Proceedings
Following the boycott decision, the lawyers for the respondents informed the court their clients had directed them not to participate in proceedings in the absence of a full bench. The lawyer for the deputy speaker, Irfan Qadir, told the apex court he would challenge its decision on refusing to form a full bench.
During proceedings, the CJP stressed the “real question” was who could give directions to party lawmakers. The Constitution clearly states the parliamentary party would give directions to lawmakers, he said. “There is no need for further arguments in this case. We will give priority to wrapping up this case as soon as possible,” he said, adding that a full court would merely delay the case.
Justice Ahsan, meanwhile, questioned where the law had identified the parliamentary leader. The PMLQ’s counsel, Salahuddin Ahmed, replied the words “parliamentary party” had been used in the Political Parties Order, 2002. To this, Justice Ahsan remarked that the word “parliamentary leader” instead of “parliamentary party” was just a “mistake.”
Justice Munib said empowering a parliamentary party was tantamount to strengthening democracy. Referring to Article 63A, he said it was necessary to give powers to the parliamentary party. To this, the additional attorney general said that according to a Supreme Court’s 2015 decision, the party head could give direction and it is compulsory for the lawmakers of the party to comply with the direction until the top court reviews its verdict. “It is not compulsory to comply with each verdict of the SC,” remarked Justice Munib. “There are rulings that the SC’s decisions are binding on all other courts,” replied the attorney general.
Legal opinions
PMLQ counsel Ahmed, in a posting on Twitter, summarized the SC’s ruling, noting it had sought to explain why it doesn’t have to follow own 8-member judgment in 2015 holding that “decision of the party as to how to vote has been conferred upon the party head.” He wrote: “Because other judges in 2015 case didn’t refer to this issue so we can ignore 8 who did; Those 8 judges (including CJP Umar Ata Bandial) were saying something irrelevant to the case; The observations of those 8 judges were made in ignorance of the law (per incurium); They were just “passing remarks”; Even if CJP earlier “unconsciously” signed a judgment that was wrong, he can now correct his mistake; In 2015 we didn’t treat Article 63A as seriously as we now have. Thus instead of forming a full court to reconsider matter—we can just ignore our earlier finding.”
He added: “As Justice Owen Roberts of U.S. SC famously said: the judgments and precedents of the Supreme Court should not be like train tickets—‘good for this day and this train only’.”
Lawyer Reema Omer, likewise, regretted on Twitter that the order had no legal reasoning and did not merit a legal response. “Distinguishing this case from the court’s earlier judgments and suggesting judges have the freedom to change their view of the law after ‘conscious application of mind’ does not make for legal reasoning,” she added.