Farooq Naeem—AFP
The Supreme Court of Pakistan on Monday dismissed the ruling coalition’s plea to form a full court bench on all petitions related to its April interpretation of Article 63A of the Constitution, including the petition on last week’s election for the Punjab chief minister.
In a short order issued after a daylong hearing, the three-member bench—Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar—said it had not been convinced of the need to form a full bench. It then adjourned the hearing on the case until 11:30 a.m. today (Tuesday).
Monday’s hearing, the second related to the chief minister’s election in which PMLN’s Hamza Shehbaz won after Deputy Speaker Dost Muhammad Mazari rejected 10 votes of the PMLQ for voting against the instructions of party chief Chaudhry Shujaat Hussain, commenced at 1 p.m. and continued past 9 p.m., including several breaks. Throughout the proceedings, the counsels of both the government and its allied parties repeatedly stressed on the need for a full court to avoid the perception of injustice and to facilitate the input of various judges.
The deputy speaker’s lawyer, Irfan Qadir, referred to the reference against Justice Qazi Faez Isa, which had been heard by 10 judges. “That was the matter of a judge. This is the matter of an entire province,” he said, adding that he was not questioning the bench’s neutrality, but a full court would increase the respect and confidence in the court. “There is an impression that [certain] cases go to the same bench,” he added.
Qadir also noted that there was a difference between a party head and the head of the parliamentary party. “The party that wanted to make Pervaiz Elahi the chief minister used to call him a dacoit,” he said, referring to PTI Chairman Imran Khan’s description for the PMLQ chief prior to their alliance. “There is an impression that the court was tilted towards those who broke the Constitution and pushed the country towards destruction,” he added.
The judges, meanwhile, repeatedly said a full court bench was only constituted on “complicated” matters and this case did not merit such consideration. In this case, said the CJP, the judges only need to determine if the party leader could overrule the decision of the parliamentary party. “The parliamentary party represents the common man in the assembly,” he observed, adding the 18th Amendment had given powers to the parliamentary party. “We have to strengthen democracy and Parliament, not individuals,” he said.
Justice Ahsan, meanwhile, remarked: “The only question is that if the deputy speaker misinterpreted our decision, we will have to correct him.”
At his turn on the rostrum, Shujaat’s lawyer Salahuddin reiterated the demand for a full court and said he believed “instructions to the parliamentary party are given by the party head.” To this, Justice Akhtar claimed that a party should not be under the “dictatorship of its head” and all decisions should be taken with the consultation of the parliamentary party.
Eventually, as calls for a full court mounted, the CJP said this would not be possible before September and the proceedings could not be halted that long. “We can’t abandon the most important matter of the state,” he said of the case he had earlier described as “not very complicated.” He also questioned if the current state of economic instability was a result of court orders or political uncertainty.
“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, stressing that judges wished to dispose of this case quickly.
Salahuddin, meanwhile, stressed that it was no big concern whether Hamza or Elahi were chief minister. However, he said, if a public perception was formed that only a select few judges dealt with all important political matters then that would “certainly be akin to a sky falling.”
In addition to the ruling coalition, former Supreme Court Bar Association president Latif Afridi also urged the formation of a full court to avoid a constitutional crisis. “The entire system is at stake,” he warned, as he urged the court to club together and hear all cases pertaining to Article 63A.
Hamza’s lawyer, Mansoor Awan, was also among voices seeking a full court. To judges’ questioning on how the deputy speaker had rejected votes cast by the PMLQ, he said the apex court’s interpretation of Article 63A had said votes cast against party policy would be rejected in paragraph 3.
Justice Akhtar observed that Article 63A 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 said the 18th Amendment had further elaborated Article 63A and referred to a judgment of former justice Sheikh Azmat’s eight-member bench, which had said all decisions are taken by the party leader.
However, Justice Akhtar said that there were two rules to cast votes in accordance with the party policy. “Prior to the 18th Amendment, Article 63A used to refer to the party head’s instruction,” he said. “After the amendment, the party leader was replaced by the parliamentary party,” he said, noting there was ambiguity about the powers of the parliamentary party and the party chief prior to the amendment. “Following the amendment, according to Article 63A, the parliamentary party was given the authority to issue directions,” Justice Akhtar observed.
Hamza’s lawyer maintained the court’s ruling on Article 63A 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,” he said, pointing out the heads of four political parties were not part of the parliamentary party. “JUIF 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 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,” he said. Awan recalled the Election Commission of Pakistan had accepted PTI chief Imran Khan’s instructions during the previous election and read out the order on the CJP’s direction.
Awan noted Khan had issued directives to PTI members to vote for Elahi in the first vote and had 25 lawmakers de-seated for not following his instructions. Justice Ahsan claimed 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, adding the MPAs in the present case were claiming the parliamentary party had decided to vote for Elahi and no one had objected.
“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,” he added.
Awan then 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.
Hamza’s lawyer also submitted his client’s statement during proceedings which stressed that the votes of PMLQ MPAs in Elahi’s favor were disregarded on the basis of party president Chaudhry Shujaat Hussain’s letter. It also referred to April 16’s chief minister’s election, 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 ECP and their appeals were pending adjudication, it added.
“This honorable 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,” it stated, adding that the ECP had upheld the PTI head’s instructions and the apex court’s judgment 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 63A, “justified” the deputy speaker’s ruling, it said, adding if the apex court set aside the ECP’s ruling, it could negate the declaration of defection given by party head of PTI.
“As a consequence, the 25 votes would not stand excluded from the votes polled to [Hamza] in the first poll held on April 16. 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 July 22 would be disregarded,” it added.