Monday September 26, 2022

Punjab CM election: Supreme Court rejects petition seeking formation of full court

SC adjourns hearing on deputy speaker’s ruling till tomorrow 11:30am; CJP Bandial says same bench will hear the case

July 25, 2022

Supreme Court of Pakistan. — Supreme Court website
Supreme Court of Pakistan. — Supreme Court website

ISLAMABAD: The Supreme Court Monday rejected the petition regarding the formation of a full court to hear the Punjab chief minister election case as requested by the ruling alliance, bar councils and CM Hamza Shahbaz.

According to the brief verdict, the same three-member bench — headed by Chief of Pakistan Justice Umar Ata Bandial, and comprising Justice Ahsan and Justice Munib Akhtar — will hear the petition filed by the PTI. Following the decision, the country's top court decided to adjourn the hearing on the ruling till 11:30am tomorrow (Tuesday).

CJP Bandial said that the court needs more legal clarification regarding the formation of a full bench to issue a verdict on the case as the Supreme Court resumed the hearing for the case of the Punjab chief minister's election.

The CJP also said that he was unsure whether the decision on the said ruling will be made today. Meanwhile, the court also accepted the petition filed by PML-Q President Chaudhry Shujaat Hussain and the PPP to become a party in the case. 

During the hearing, Deputy Speaker Mazari's lawyer, Irfan Qadir said he was instructed to speak regarding the formation of the full court only; therefore, he needs time to take instructions from his client.

Meanwhile, Hamza Shahbaz’s counsellor Mansoor Awan sought time to take instructions for arguments on merit.

Justice Ijazul Ahsan reiterated that the decision to form a full court will be made on merit. Meanwhile, Law Minister Azam Nazeer Tarrar asserted that there was enough clarification in this regard.

Advocate Qadir said he was instructed to speak regarding the full court formation only; therefore, he needs time to take instructions from his client.

Meanwhile, Hamza Shahbaz’s counsellor Mansoor Awan sought time to take instructions for arguments on merit.

Justice Ahsan reiterated that the decision to form a full court will be taken on merit; meanwhile, Law Minister Azam Nazeer Tarrar asserted that there is enough clarification in this regard.

Tarrar added that if the review petition is approved that there will be no need for a run-off election.

During the hearing, CJP Bandial said that the case regarding the National Reconciliation Ordinance (NRO) was heard by a full court because it was a “constitutional matter”.

“We have sent the prime minister home with five judges at that time you [coalition parties] were celebrating and now you are standing against this,” the chief justice said, adding that if this matter crosses the limit, then a full court will be formed.

Advocate Qadir's arguments

Presenting his arguments, advocate Qadir added that when allegations are levelled against the judges that similar bench is formed repeatedly then these charges can be rejected by the formation of a full court.

“There is no objection on the neutrality of the current three-member bench; however, to remove any ambiguities, a full court needs to be formed,” the deputy speaker’s counsellor said.

CJP Bandial recalled that the SC had taken suo moto notice in the case of the federal government and announced its verdict by hearing the case day and night.

“In the federal government case, we were of the view that the National Assembly deputy speaker had violated Article 95; however, under the current scenario the court hasn’t taken suo moto notice,” the chief justice said.

He further added that instead of prolonging the case, it can be shortened, saying there was only one question to be addressed: whether the party head could give directions or not.

“You have already given the answer to this question in affirmative,” he told advocate Qadir.

Continuing his argument, advocate Qadir said that the re-election for the chief minister was held in the light of the court's decisions.

“Therefore, if the court refuses to accept the deputy speaker's decision to reject the votes of defecting members, there will be no need for re-election,” he said, adding that the basis of this case is the Supreme Court’s verdict “which must be reviewed first.”

Advocate Qadir further said that there is a contradiction in Supreme Court’s ruling on Article 63(A), “which gives the idea that the apex court is under pressure.”

However, he immediately added that he wasn’t trying to disrespect the court as the top court was equally respectable for him as well.

Citing an example of the difference of opinions among politicians which was wreaking havoc on the country, the deputy speaker’s counsel said that if the judges also unite and form a full court, then the issue can be resolved easily.

While concluding his arguments, the lawyer urged the court not to hurry in making a decision and carefully deliberate it.

'Hear case with fresh mind tomorrow': Farooq H Naik

On the other hand, PPP’s counsel Farooq H Naek requested that the court should hear the case tomorrow morning “with a fresh mind”.

Justice Munib Akhtar intervened, saying that there should be no dictatorship of the party leader in the parliamentary party.

Subsequently, PML-Q lawyer Salahuddin took the rostrum and said that in his opinion, “instructions to the parliamentary party are issued by the party head,” as he also urged the formation of a full court bench.

CJB Bandial acknowledged that the country was suffering from a continuous crisis since April. “We want the country to run according to the Constitution and democracy; we don’t want these differences to continue,” he said.

The chief justice further added that cases related to the constitutional and public interest cannot be left hanging in the balance.

“Like every citizen, we are also worried about the economic situation,” CJP Bandial said, adding that today, the one who took more votes is out and the one who secured 179 votes is the chief minister.

CJP Bandial said that in order to retain Hamza as the CM, solid foundation is needed. “Please, show the written proof that where is it written that directions of an unelected party leader have to be accepted,” he said, addressing the counsellors present in the courtroom.

The chief justice: “Is this state of the economy because of the court or because of instability?”

The chief justice added he wished to dispose of the case quickly and that the court only had two more judges available at the moment.

At this, Salahuddin suggested that judges could hear the cases through video links.

The CJP said the court had mediated even before the by-elections and those were held peacefully.

At this point, the court took another break.

‘Positive manner’

Speaking to journalists outside the court, former information minister and PTI leader Fawad Chaudhry acknowledged that judges didn’t come under pressure.

“The proceedings of the court are progressing in a positive manner,” he said, adding that by empowering the parliamentary party, democracy will be strengthened.

“Parliamentary party should have the authority to unseat members,” he added.

Speaking on the occasion, the ex-state minister for communication Farrukh Habib said that a “fake” chief minister was ruling the province for the last three months.

“This is not possible that 13 ministers pressurise the judges by criticising them,” he said.

'Truth will take its course'

Meanwhile, PTI's Secretary-General Asad Umar, while speaking to media persons outside the court, said that the court has given Hamza another chance, and added that he hoped that the court will announce its final verdict tomorrow.

“Hopefully truth will take its course,” he said, adding that the federal government is constantly criticising the federal government.

‘Fear of contradiction': Maryam

Taking to her Twitter handle in reaction to the SC's verdict, PML-N Vice President Maryam Nawaz said that there was only one reason for not forming a full court — “fear”.

“Fear of the contradiction of its own decision,” PML-N stalwart wrote.

Saying that she was “almost sure” that a full court will not be formed, Maryam added that when the decisions aren’t taken in accordance with the Constitution, law, and justice, then the formation of a full court is deemed dangerous.

“Involvement of honest judges in the bench highlights the flaws of the decisions taken earlier… and people know that the decisions were taken on personal preferences,” Maryam added.

In another tweet, she wrote: “You [the three-member bench hearing the case] took away 20 votes from us and now you have also awarded 10 votes cast by PML-Q members to PTI.

“Pervez Elahi sahaba's majority was your doing,” she added.

Who filed the petition?

The PML-Q had challenged the ruling of Deputy Speaker Dost Mazari who discarded 10 votes of the party polled in favour of Pervez Elahi against the direction of the party president.

He had approached the court challenging Mazari’s move, pleading the court to dismiss the deputy speaker's ruling as the “parliamentary party” had decided to vote for Elahi during the chief minister election on Friday.

After the initial hearing on Saturday, a three-member bench, headed by Chief Justice Umar Ata Bandial, directed Hamza Shahbaz to work as a "trustee" chief minister till the next hearing.

The court had observed that Hamza Shahbaz could exercise limited powers as per the law and Constitution.

The first half of the hearing

When the hearing resumed today, Advocate Latif Afridi appeared on behalf of the bar councils and reiterated their demand that the full court hears the matter.

At this, CJP Bandial said that he was honoured that the former SCBA chief had put the matter before him, but noted that the court would take a decision after hearing all parties in the case.

CJP Bandial said that he did not want to issue a one-sided order and neither would he arrive at a decision under the advice of 10 former presidents.

"We need to hear the other side of the story as well," he said. At this, Afridi said that a full bench should be constituted and the available judges should be included.

Moving on, PPP lawyer Farooq H Naik said that he has requested to become a party in the case, at which the CJP told him that let the initial matters be wrapped up first.

"We will hear you, but let the proceedings move in line with the order. Please sit, I hope that your seat will be vacant," the CJP told Naik.

In response, Naik told him that "seats come and go".

During the proceedings, SCBA President Ahsan Bhoon said that he could not "imagine" pressurising the court, but noted that the review petition on Article 63A should be heard.

"What's the hurry Bhoon sahab, let us hear this case first," CJP said.

Barrister Ali Zafar — who is representing Elahi in the case — said that he has also remained the president of the bar. "The bar presidents should not be involved in such matters."

Deputy Speaker Mazari's lawyer, Irfan Qadir, too, when he came to the rostrum, said that since there are several confusions over the matter, a full bench should hear the case.

Then, Mazari's counsel read out the court's order issued on July 23. At this, the CJP asked the lawyer how the deputy speaker arrived at the conclusion that the court's order on Article 63 (A) gives the impression that it speaks about the party head.

"This question is for you [and] that is why a special bench has been formed. The question here is what happens when the party head and the parliamentary party's decisions differ?"

Qadir said that it was not his job to define what questions arise here, but it was the court's task. At this, the CJP asked him to read out Article 63 (A).

The CJP then said that the article mentions the party head and the parliamentary party.

"I am extremely confused as to what the question is here? I cannot understand what's the question?" he asked.

The CJP then said that maybe the lawyer was having trouble hearing the judges and warned him that he would be asked to sit at his seat if he cuts off any judge while they are speaking.

Justice Ahsan asked if the same person can issue declarations and instruct a parliamentary party at the same time. At this, Qadir said that the political parties' rights have been mentioned in the constitution.

Justice Akhtar then said that the deputy speaker issued the directions — during the Punjab CM election on July 22 — under the SC's ruling in the Article 63(A) case.

"There is no confusion in this case anymore, let someone else speak now," Justice Akhtar added.

'Parliamentary party empowered to give directions'

Justice Ahsan then started speaking with Hamza's lawyer, Mansoor Usman Awan, and asked him specifically which paragraph did the deputy speaker refer to while issuing the directives.

The lawyer told him that the only point here is that any vote cast against the party policy should be dismissed.

Justice Ahsan asked whether the party head could be the leader of the parliamentary party.

At this, Awan said that in previous orders of the apex court, it is mentioned that the party head can give directions to the party.

He said that Justice Azmat Saeed's order has mentioned that the party head takes all the decisions.

But Justice Akhtar said that there are two different policies while voting on the directions of the party policy.

He added that previously, there was confusion over the party head's functions, but after amendments in Article 63 (A), the "parliamentary party has the right to issue directions".

The lawyer then told the court that the deputy speaker gave his ruling based on paragraph three of the SC's order on Article 63 (A).

Shujaat's letter received 'much before' session

Upon the court's query about Chaudhry Shujaat's letter to his party MPs, Law Minister Azam Nazeer Tarrar said that the directions were given to members "much before" the assembly session.

During the arguments, the court stopped Hamza's counsel Awan from taking directions from the federal minister.

"You are the chief minister's lawyer, how can you take guidance from the law minister?" Justice Munib asked.

Continuing his arguments, Awan said that PTI Chairman Imran Khan gave directions to his MPs and the Election Commission de-seated the dissents lawmakers on the basis of these instructions.

He also presented Khan's letter before the bench.

PTI has 'no objection' on full court

Speaking to journalists outside the courtroom, PTI leader Fawad Chauhdry said the party has no objection to the demand for the formation of a full bench.

“If [the] chief justice himself decides to form a full bench then it is okay,” he said, adding that it would not be acceptable if formed on the coalition partners' demand.

‘My party, my letter’

In his arguments before the SC bench, Ch Shujaat’s counsel Salahuddin confirmed that he wrote the letter to his party lawmakers.

“The party is mine and the letter is also mine.”

The CJP asked the lawyer to limit his arguments to the formation of a full bench as the PML-Q president has not been made a party in the case.

“I want a full court to be formed,” he added.