ISLAMABAD: The Supreme Court on Tuesday set aside the ruling of the Punjab Assembly’s deputy speaker on the coveted post of chief executive of Pakistan’s most populous province and directed the chief secretary to issue the requisite notification declaring Chaudhry Pervaiz Elahi as the elected chief minister.
A three-member bench of the apex court, headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsen and Justice Muneeb Akhtar, announced the judgment in the petition, filed by Pervaiz Elahi challenging the ruling of Punjab Assembly Deputy Speaker Dost Muhammad Mazari.
The verdict was announced after a three-hour delay. CJP Bandial had first said that the judgment would be issued at 5:45pm and later it was scheduled to be announced at 7:30pm. But the judgment was announced at around 9pm.
The proceedings went on for three days — Saturday, Monday, and Tuesday — as lawyers from all the parties presented their arguments.
The court in the short order directed the Punjab chief secretary to make arrangements for administering oath to Elahi at 11:30pm on Tuesday. Later, the chief secretary notified Pervaiz Elahi as the chief minister.
The bench also ordered Punjab Governor Baligh Ur Rehman to administer the oath to Elahi at 11:30pm, adding that if he refuses to perform his duties, President Arif Alvi will administer the oath.
During the election of Punjab chief minister held on July 22, Deputy Speaker Dost Muhammad Mazari had decided against counting votes of 10 PMLQ 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 Shehbaz instead.
“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, Dost Muhammad Mazari, was patently incorrect and erroneous and cannot be sustained,” Chief Justice Bandial announced in an 11-page short order.
The court held that the governance of Punjab, in accordance with the Constitution, has been subverted whereby the fundamental rights of the people have been seriously infringed.
“As a result, the ruling dated July 22, 2022 issued by Deputy Speaker, Punjab Assembly, is set aside and declared to be void, without lawful authority and of no legal effect,” the chief justice announced in the short order.
The order also declared that the oath of office administered to Hamza was “without lawful authority and of no legal effect”.
“Likewise all acts, deeds and things attendant and consequent upon such oath including but not limited to the notification of Respondent No.2 (Hamza Shehbaz) and the formation and swearing in of the cabinet on his advice is also declared to be without lawful authority and of no legal effect,” said the order.
The court noted that having admittedly secured 186 votes as against 179 votes obtained by Hamza in the runoff election of Punjab chief minister held on July 22 pursuant to its consent order dated 01.07.2022 passed in a civil petition, Pervaiz Elahi (the petitioner) is declared as the duly elected chief minister, Punjab.
“We direct the chief secretary, Punjab to immediately and forthwith and on announcement of this short order issue the requisite notification declaring the petitioner Chaudhry Pervez Elahi as the duly elected chief minister, Punjab,” says the order.
Soon after the SC announcement, Pakistan Tehreek-e- Insaf (PTI) General Secretary Asad Umer, former Foreign Minister Shah Mahmood Qureshi along with other PTI leaders, present in the courtroom No 1 congratulated Moonis Elahi, son of Pervaiz Elahi.
The court noted that the said election was the runoff in terms of the proviso to Article 130(4) for the post of chief minister, Punjab to be held between the Hamza Shahbaz and the petitioner Pervaiz Elahi.
The order noted that a petition filed before this court against the said order dated 30.06.2022 was disposed of on 01.07.2022 by a consent order, adding that it was agreed by and between the petitioner and Hamza Shehbaz Sharif as well as the coalition partner of the petitioner (PTI) that the runoff election would be held on 22.07.2022 after the bye- elections on the 20 general seats in the Punjab Assembly vacated by the PTI members whom the ECP had declared as defectors.
“Both the petitioner Chaudhry Pervaiz Elahi and Hamza Shehbaz Sharif agreed to the continued functioning of the later as the chief minister of the province in a fiduciary capacity until holding of the runoff election,” the order noted.
The court held that it was further agreed that the election would be held under the charge and supervision of the Election Act and the Code of Conduct of the ECP.
“It was further directed that the election process would be completed in accordance with the schedule announced by the ECP which would issue notification of the final result accordingly,” says the short order.
The court further noted that the runoff election held on July 22 Pervaiz Elahi secured 186 votes whilst the respondent Hamza Shehbaz got 179 votes which is recorded in the impugned ruling of the deputy speaker dated 22.07.2022.
The court, however, held that the deputy speaker excluded 10 votes in favour of the petitioner from count as a result of which he announced Hamza as winner.
The votes were excluded on the basis that 10 members of the PMLQ had failed to follow the direction under Article 63A(1)(b) of the Constitution given by the party head Chaudhry Shujaat Hussain to the members of the Parliamentary Party of PMLQ”, says the short order.
As a result, the court noted, the winning candidate who had received 186 votes lost the election by 03 votes, and the deputy speaker’s ruling was challenged before the court on July 23.
After the preliminary hearing, the court held that the matter has been heard at principal seat on July 25 and 26.
The court held that the counsel for the respondents raised an objection to the hearing of the matter by a three member bench of this court and sought the referral thereof to the full court.
The court noted in its order that requests were made by the counsel for the respondents/ interveners for further time to make additional submissions, if any, and seek instructions.
“We accordingly adjourned the matter for today i.e. 26.07.2022
at 11:30 am to give the learned counsel for the respondents/ interveners a further opportunity to add to their submissions on
the merits of the case if deemed appropriate by them”, the short order reads as
However, the court noted, when the matter was taken up at 11:30 am, the counsel for the respondents as well as interveners one by one stepped forward and informed the court that their respective clients had instructed them not to participate further in the proceedings in this case.
However, in the first session which continued for about one hour and forty-five minutes, they did not withdraw from the court room and observed further proceedings.
Earlier, during the hearing, Irfan Qadir, lawyer for the deputy speaker, told the bench that his client had told him to not be a part of the proceedings as a country-wide boycott of the judiciary is being observed.
Qadir told the SC that he would challenge the apex court’s decision relating to the full court — wherein the top court decided to not form a full bench to hear the case.
Following Qadir, PPP lawyer Farooq H Naek came to the rostrum and informed the CJP that he would not be part of the proceedings.
At this, the CJP told him that he “is not a party in the case”.
The CJP said that “no legal” grounds were presented before the court; arguments were presented only regarding the party head’s directions; the court arrived at the conclusion that in the current case, there was no need for a full bench.
“I will change my opinion only when concrete reasons are given.”
CJP Bandial said the real question was who could give directions to party lawmakers. The Constitution clearly states that the parliamentary party will give directions to MPs, 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.
CJP Bandial said that forming a full court was tantamount to unnecessary delay.
“The formation of a full court and then hearing of the case could have been delayed till September as leaves are being taken in the court.”
Meanwhile, the top court sought assistance on the matter relating to directions by the party head or a parliamentary party.
“Assist the court over the legal questions or we will set ourselves aside from the bench,” CJP Bandial told Barrister Ali Zafar, the counsel for Elahi.
“People sitting on my right side have unanimously decided to boycott the proceedings of the court,” he said, adding that thankfully, they have enough grace to sit in court to hear the proceedings.
Giving his arguments in the case, Zafar said that the petitions against the 21st Amendment were dismissed by a ratio of 13:4 in a full court.
However, many judges gave different reasons for dismissing the petitions, he added.
Zafar told the court that the constitution mentions that the parliamentary party will give directions to the lawmakers about voting.
At this, the CJP questioned whether the party head and parliamentary party were two separate entities.
Zafar said that they were two separate entities.
CJP Bandial said that the parliamentary party does not make its decision on its own. In light of the political party’s directions, the parliamentary party makes its decision.
Justice Ahsan then said, according to the Constitution, the party head follows the parliamentary party’s directions. The CJP said that the parliamentary party does not make a decision unilaterally.
“The parliamentary party is informed about the party’s decision, and based on that, it takes a decision.”
During the proceedings, Justice Ahsan questioned: “Where has the word parliamentary leader been used?”
The PMLQ counsel replied that the world “parliamentary party” is used in the Political Parties Order 2002.
At this, Justice Ahsan remarked that the word “parliamentary leader” instead of “parliamentary party” is just a mistake.
Additional Attorney-General (AAG) Amir Rehman then came to the rostrum and said he wanted to present a few suggestions before the court.
“Has the federal government decided to separate itself from the coalition government?” the CJP asked.
The AAG told the top judge that he will assist the court under Article 27.
At this, the CJP extended an open invitation to assist the court to reach a fair and just decision in the high-profile case.
The court then went on a break for an hour and said that the hearing will resume at 2:30pm.
After the hearing resumed, the former advocate-general of Punjab, Ahmed Owais, came to the rostrum.
“I want to inform the Supreme Court of a few things. For three months, the matter of the chief minister is under discussion. Let me tell the court that Q-league members were aware whom they had to vote for,” Owais said.
He urged the court to review the events that took place not only during the election but also before it.
Moving on, Zafar, while referring to the verdict in former PTI lawmaker Ayesha Gulalai’s case, said that the court had set the procedure for the directions of the party head.
At this, Justice Ahsan remarked that the court, in that case, had delivered its verdict against Zafar’s client.
The lawyer said that the verdict, in that case, was against his client but in accordance with the Constitution.
“Is it written in the Ayesha Gulalai case that who will give directions?” asked the CJP.
It is declared in the case that the party head or a person nominated by them can file a disqualification reference, replied the lawyer.
The CJP then said that the authority is transferred through the party head and there is no doubt that the head’s office plays an important role, but at the same time, the parliamentary party gives directions for voting.
Justice Munib remarked that empowering the parliamentary party is tantamount to strengthening democracy. Reffering to Article 63-A of the Constitution, the apex court judge said it is necessary to give powers to the parliamentary party.
At this, the additional attorney general said that according to a Supreme Court’s 2015 decision, the party head can 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 AAG.
The judge asked if it is necessary for the deputy speaker to comply with the ECP’s decision. The attorney general replied, “No, it is not necessary.”
The judge remarked that the deputy speaker should have written if the verdict in the 21st amendment was in his mind.
At this, the chief justice thanked all the lawyers and said that the SC wanted to strengthen the constitution.
Before the first break, while addressing PPP lawyer Naek — who was not participating in the case due to the boycott — Justice Ahsan asked him to give his arguments if some betterment can be made in the case.
“The issue is, in these cases we are bound by party policy. Although, I was ready to assist the court,” he told Justice Ahsan.
Late at night Punjab Chief Secretary, Kamran Ali Afzal issued a notification in which Pervaiz Elahi had been notified as elected chief minister in place of Hamza Shehbaz.
The notification said: “Consequent upon the short order of the Supreme Court of Pakistan under the constitutional petition No 22 of 2022, dated 26, 7, 2022, Mr Pervaiz Elahi is declared duly elected chief minister of Punjab with immediate effect.”
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