Several senior legal experts are unanimous that the SCP had no power to order that the votes of defecting members do not count
akistan Tehreek-i-Insaf has won the battle in the Punjab and elected Chaudhry Parvez Elahi, once Imran Khan’s adversary during Musharraf’s rule, as Punjab chief minister. Elahi has clinched the slot in the aftermath of two verdicts of the Supreme Court of Pakistan (SCP) on peitions filed by the PTI. The political battle between the majority coalition in the National Assembly and the PTI is not over yet. The aftershocks of the Supreme Court’s verdict could engulf the military establishment, the broader judiciary, the federal legislature (National Assembly and the Senate) and other state institutions and reset the tone of the country’s politics.
The nerve-wracking race between former chief minister Hamza Shahbaz and Elahi may not be entirely over yet. Hamza had initially won the election for chief minister with the help of 25 PTI defectors. Later, these MPAs were not only de-seated; the court also held that their votes were not to be counted. The SCP then ordered Hamza Shahbaz to keep working as a Trustee Chief Minister till the vacant seats were filled through by-elections. The PTI won 15 of the 20 general seats in by-elections. However, when the run–off for the chief minister’s election took place, Chaudhry Shujaat Hussain, the Pakistan Muslim League-Quaid chief, directed his 10 MPAs including Chaudhry Parvez Elahi to vote for Hamza Shahbaz, the PML-N candidate. They voted for Elahi, who was the PTI candidate. Deputy Speaker Dost Mazari, the presiding officer, then ruled that their votes did not count and declared Hamza Shahbaz the winning candidate. The PTI and the PML-Q filed petitions before the Supreme Court’s Lahore Registry in the middle of the night. These were received without any objections.
A three-member bench of the SCP which has emerged as the usual bench in the political and constitutional cases in the SCP, headed by Chief Justice Umer Atta Bandial, flanked by Justice Ejazul Ahsan and Justice Munib Akhtar, took up the case. The Supreme Court Bar Association and 11 political parties requested the SCP to fix the case before full court. The request was rejected.
In its verdict, the SCP set aside the deputy speaker’s ruling to not count the PML-Q votes and declared Elahi to be the winner of the election and chief minister-elect. The SCP did not stop there. It also directed that Elahi be administered the oath the same night. Elahi then went to Islamabad on board a special plane to take the oath administered by President Arif Alvi.
After taking the oath, his first step was to appoint Muhammad Khan Bhatti, the controversial secretary of the Punjab Assembly, as his principal secretary. This might invite criticism from PTI leaders because Bhatti is alleged to be “more of an Elahi loyalist than a public servant”.
On Wednesday, the PTI tabled a no-confidence motion against Dost Muhammad Mazari, the deputy speaker. The election for the speaker will also take place this week. The PML-N and its allies have also fielded a candidate.
Imran Khan and Parvez Elahi have engaged in consultation to form the Punjab cabinet. The political analysts are now looking out for Elahi’s next move. In political terms, he has two options: he can either form a new faction in the PML-Q or join the PTI before the next elections. The first option might work better for him than the second.
For his part, Chaudhry Shujaat Hussain might expel him and the other nine MPAs from the party and continue to head the left-over strength or merge his faction with the PML-N.
Impact on the federal ruling coalition
The PML-N-led ruling coalition has taken the SCP’s verdict seriously. It has sensed that Khan still enjoys support from powerful quarters. The PML-N is the biggest stakeholder in the ruling coalition. It has suffered a serious setback in the by-elections, losing 15 of 20 seats. The Pakistan Democratic Movement (PDM) and its allies including the PPP have unanimously decided to adopt an aggressive policy towards the judiciary and those, tacitly supporting Imran Khan and the PTI.
Following the SCP’s verdict, several developments took place including a meeting of the Judicial Commission for the appointment of judges to discuss the names of four new judges to be appointed to the vacant seats in the SCP. The CJP had proposed names of four judges from the Punjab, the KP and Sindh.
The coalition’s aggressive posture is reflected in Foreign Minister Bilawal Bhutto Zardari’s words. While speaking on the floor of the National Assembly on Wednesday, the PPP chairperson said, “Now, president of Pakistan does not enjoy the power to dissolve the National Assembly under (abrogated) Article 58(2)B. The new 58(2)B has gone to the judiciary.” He said, “It was the PPP’s mistake to support the 19th Amendment. We were threatened that the 18th Amendment would be repealed if the 19th was not passed.” Without naming anybody, he said, “Being neutral for one night cannot wash the stains of 70 years.” He urged the NA speaker to constitute a joint parliamentary committee to revisit the constitutional provisions about the powers of the judiciary and the CJ.
Prime Minister Shahbaz Sharif also made an aggressive speech. He said, “In March, the president, Imran Khan, the speaker and the deputy speaker tried to defy the constitution and dissolve the National Assembly but the Supreme Court did not call them (to account). In Punjab Assembly’s case, the deputy speaker was immediately called.”
Following the SCP’s verdict, several developments took place including a meeting of the Judicial Commission for the appointment of judges to discuss the names of four new judges to be appointed to the vacant seats in the SCP. The CJP had proposed names of four judges from the Punjab, the KP and Sindh. All the names were rejected by a majority of the participants with the attorney general, the law minister and the Bar representative voting against.
On Wednesday night, the federal cabinet decided to form a parliamentary committee to discuss and formulate judicial reforms to regulate the chief justice’s powers to take suo motu notice and form benches. It also decided to withdraw a review petition filed by the PTI government in Justice Qazi Faez Isa case. The cabinet also formed a sub-committee to review the case and take action against those who had filed the reference against him.
Interior Minister Rana Sanaullah said, “We are not curtailing the powers of the Supreme Court. Only the parliament can amend the constitution whereas in the recent verdicts the Supreme Court has exercised the parliament’s powers.”
The cabinet was of the view that the SCP had overstepped in the Deputy Speaker’s Ruling Case and that the matter should be taken up by the parliament.
Several senior legal experts agree that the SCP had no power to order that the votes of defectors do not be count. Such a decision required a constitutional amendment by the parliament. There is also no concept of a ‘Trustee’ chief minister in the constitution.
The Supreme Court Bar Association (SCBA) and the Pakistan Bar Council (PBC) also issued a declaration on Wednesday demanding amendments in the constitutional clauses regarding the jurisdiction of the SCP. The declaration demanded that the CJP’s power to fix cases and form benches should be regulated. It proposed that five most senior judges of the Supreme Court should collectively exercise the power.
The future of Prime Minister Shahbaz Sharif and his federal government too is uncertain. PTI activists are saying that Shahbaz Sharif’s prime minister-ship is limited to Islamabad. They apparently ignore that Sharif heads a coalition government with the support of the PPP and Balochistan Awami Party that are heading provincial governments in Sindh and Balochistan.
Interestingly, Nawaz Sharif and Imran Khan appear to have similar views on general elections. However, the PPP and other components of the ruling coalition believe that immediately holding elections will be extremely hazardous for every component of the coalition on account of the price-hike, historic depreciation of the rupee, power crisis and judicial activism. The coalition appears unlikely therefore to opt for fresh elections until after a successor has been appointed to the COAS.
Mubasher Bukhari is a senior journalist, teacher of journalism, writer and analyst. He tweets at @BukhariMubasher