ISLAMABAD: Punjab Chief Minister Hamza Shehbaz told the Lahore High Court (LHC) that a Supreme Court interpretation of Article 63-A of the Constitution, which is related to the disqualification of lawmakers over defection, did not apply to his election retrospectively and as such it was valid.
Article 63-A provides that MPs who defect could lose their seats if they then vote against their party, but the government aims to find out whether that also applies before they cast their votes.
It reads that an MP can be disqualified on grounds of defection if they “vote or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, in relation to the election of the prime minister or chief minister; or a vote of confidence or a vote of no-confidence; or a money bill (budget) or a Constitution (amendment) bill”.
Earlier this month, the Supreme Court issued a verdict on a presidential reference seeking a ruling on whether defectors from the ruling Pakistan Tehreek-e-Insaf (PTI) party could lose their seats, said votes of dissident lawmakers would not be counted in case of defection from their respective political parties.
Following the verdict, the Election Commission of Pakistan (ECP) formally de-notified 25 lawmakers of PTI in the Punjab Assembly who had defected and voted for Pakistan Muslim League-Nawaz (PML-N) vice president in the election for the office of Punjab chief minister on April 16.
With these 25 lawmakers no longer members of the assembly, Shehbaz, who won for the chief minister with the help of the dissident legislators, has lost his majority in the Punjab Assembly, raising questions about the status of his government.
Shehbaz got 197 votes in the chief minister’s election but is now left with the support of 172 members in the house. A candidate requires the support of at least 186 lawmakers in the 371-member House to be elected as the chief minister.
Subsequently, the PTI petitioned the high court challenging Shehbaz’s election as the provincial chief executive. Responding to the petition, Shehbaz requested the court to dismiss the plea “with costs”.
Shehbaz’s 16-page reply, submitted by his counsel Khalid Ishaq, was presented to the court after the LHC fined him and his administration Rs100,000 each at the previous hearing on May 25 over their failure to submit their replies.
In his response, Shehbaz explained that while his election for the post of chief minister was held on April 16, the SC’s interpretation of Article 63-A was issued on May 17. Hence, the election could not be governed by the SC order, he said, adding that “it is settled law that any interpretation/annunciation of law by the superior courts is not to apply retrospectively, unless expressly stated otherwise”.
Additionally, he pointed out, the SC order was in connection with a no-confidence motion in the National Assembly and as such, “it cannot be said to have affected the said election”.
He added that the election was “conducted strictly in accordance with the Constitution in compliance with the orders passed by the Hon’ble Court” and thus “cannot be said to have been a result of any mala fide”.
Shehbaz recalled that he had filed a petition in the LHC to ensure “that the constitutional requirement of holding the election of the chief minister” be implemented after the resignation of the former CM.
He added that the court “was pleased to accept the Answering Respondent’s prayer and directed that the election be conducted on 16-04-2022 by the Deputy Speaker”.
Shehbaz maintained that the petition against his election was not maintainable under Article 199 of the Constitution, which, the Punjab CM said, barred the petitioner from invoking the constitutional jurisdiction of the LHC as they were not an “aggrieved party” in the case.
He also argued that the petition was also not maintainable in light of an ouster provided under Article 69, read with Article 127, of the Constitution.
“A bare perusal of the contents of the petition under reply leads only to one ineluctable conclusion that the proceedings called in question are the ‘proceedings in the House’ and the averments made by the petitioner are, at best, mere irregularities of procedure,” he said.
The jurisdiction of the LHC could not be invoked in such cases due to the ouster provided under the said articles that barred a party from challenging an election in the House, he added.
He further said his election had been challenged on the basis of an “unconstitutional, illegal, unlawful” assumption of “purported jurisdiction/power” by outgoing Punjab governor Omar Sarfaraz Cheema, “whereby he purportedly attempted to declare the election in the House as illegal and unlawful”.
However, he argued, that the LHC had already held that the governor did not have any such power or authority to give such a declaration.
Terming the contents of the petition “baseless”, he said they did not form the “lawful basis for invoking extra-ordinary constitutional jurisdiction of judicial review under Article 199 of the Constitution”.
According to a news outlet, Punjab Assembly Speaker Pervaiz Elahi’s counsel urged the Lahore High Court to remove Hamza from the post of the provincial chief executive and announce new elections for the said post.
Barrister Syed Ali Zafar, appearing on behalf of Elahi, said before the court that he filed the petition of quo warranto because Hamza “has not obtained the votes of the majority of the total membership of the Punjab Assembly on April 16 as required by the Constitution”.
Elaborating further, Barrister Zafar submitted that under Article 130(4), a person could call himself a CM only if he has been elected at least by 186 votes of the MPAs.
However, he pointed out that it was an “admitted fact” that on the election day 197 votes were cast in favour of Hamza Shehbaz out of which 25 belonged to defected PTI voters.
Barrister Zafar submitted that on the true interpretation of Article 63-A the PML-N leader only secured 172 votes and was not legally CM Punjab. Instead, elections must be held to determine who has the majority of the votes, he added.
Barrister Zafar stated that the office of CM is a constitutional post and also responsible for forming the next government, hence, only a person who has the confidence of the majority, as required by Article 130(4), can act as the CM.
The CJ asked Zafar whether the judgement of the top court of the country applied to the events which took place on April 16. Barrister Zafar responded that Article 63-A existed and was part of the Constitution as it was on April 16 and was accordingly to be applied to the events in full force and effect as interpreted by the Supreme Court.
He stated that the judgement of the SC has binding effect as laid down in its earlier judgements, such as, the Hisba Bill case having been issued under Article 186 and 184(3) and the court was bound to interpret Article 63-A in the manner stated by the Supreme Court.
He submitted that therefore the question of retrospectivity was irrelevant because the judgement of the SC was to be used as the precedent to be applied to the facts of this case.
Barrister Zafar was still on his legs when the Court adjourned the case for May 31 for further arguments.
