SC verdict spells trouble for Hamza Shehbaz
As PTI Chairman Imran Khan trains his guns on the PMLN-led coalition government, Supreme Court’s verdict has paved way for general elections in the country – a prime demand of the former prime minister, turning his sighs into cheers.
The apex court’s verdict, which ruled that the votes of defecting lawmakers will not be counted, has come as a shot in the arm of the former ruling party that is poised to take the great leap to the federal capital, altering many calculations.
The judgement is thought to potentially deal a fatal blow to the PML-N’s calculations in the country’s political heartland – Punjab – with the fate of the newly elected chief minister, Hamza Shehbaz, hanging in the balance, throwing the matter into a new period of uncertainty and seeding further confusion about the outcome.
The majority opinion has also astonished many legal minds who recall that CJP Bandial had on March 24 said that discarding a lawmaker’s vote during no-confidence proceedings was “insulting", observing that a lawmaker could not be barred from voting.
Meanwhile, the minority opinion – authored by Justice Mazhar Alam Miankhel and Justice Jamal Khan Mandokhail – has seemed to have put the two judges at odds with the other members of the bench, feeding the perception held by some senior lawyers that the CJP’s unfettered discretionary powers to form larger benches has allowed him to induct only “like-minded” judges from the otherwise “divisive” judiciary.
The perception was further pronounced by the “unusual” urgency displayed to decide presidential reference at the time when PML-N lawyer Makhdoom Ali Khan was on general adjournment. Mr Khan had requested the SC to take up the case after May 17 as he was outside the country.
Consequences in Punjab
The apex court’s decision will also potentially convey tremors down the political logic in Punjab where the new setup - formed by defections from the former ruling party - is still in its nascent stage.
Renowned lawyer Salman Akram Raja said that if the ECP decides to de-seat 25 dissident PTI MPAs, it will result in the second round of election for the CM in terms of proviso to Article 130(4). Whoever wins a majority will form the government, he added.
The senior constitutional lawyer believes that the SC’s majority opinion indicates that Hamza will have to relinquish the coveted pos. Likewise, the chances of PM Shehbaz Sharif surviving the intense headwinds seem dimmer than ever.
‘Not retrospective’
However, another senior lawyer pointed out the silver lining and noted that all questions raised in the presidential reference had been turned down except one and that too will come into effect if there is a parliamentary party direction which has been defied. He added that it is prospective in nature, and not retrospective.
“It has no retrospective effects. Hence, the election of CM Punjab shall not be affected. In the case of a vote of no-confidence against former premier Imran, no votes were cast by defectors and therefore, that remains completely unaffected.”
Secondly, he added, the governor Punjab can call upon CM Punjab to seek a vote of confidence, in which case the office of CM Punjab can be in trouble because no dissident shall be able to vote for Hamza Shehbaz.
‘Preamble diluted, if not negated’
He opined that the Supreme Court has through the majority opinion, prima facie, scuttled the voting rights of MNAs and MPAs to vote out the leader of the house. “This right of theirs was enshrined in the constitution. This right was bestowed on the chosen representatives through the preamble of the Constitution,” he emphasised.
The lawyer went on to say that the preamble of the Constitution is a salient feature that “has, prima facie, been diluted if not negated”.
"The unbridled voting rights of an MNA and MPA have been usurped and laid in the lap of a parliamentary party under the garb of Article 17. The word parliamentary party has no mention in either the preamble or Article 95 of Constitution.”
He regretted that the opinion has primarily changed the spirit and fabric of the constitutional scheme of voting rights, including keeping a check on the leader of a house.
‘Dictatorship within parties’
A senior lawmaker took exception to the judgement, expressing the misgivings that it will end up strengthening “dictatorship within the political parties”. He feared that in the wake of the judgement, the parliamentary parties would be fettered to the will of the party head.
“Now lawmaker has no option to express his dissent except tendering resignation,” he regretted.
‘Horse trading discouraged’
However, one section of lawyers believed that judgement would strengthen political parties and the parliamentary form of system.
Advocate General Islamabad Niaz Ullah Niazi lauded the verdict, saying that it would curtail horse trading. “No one will now entertain the idea of purchasing votes,” he said, cheering the verdict.
‘PML-N still has few cards’
The PMLN-led Punjab government might suffer a political setback over the decision of the ECP. But some experts believe it would not translate into an instant change in the province as the PML-N will still have a few cards up its sleeves to impede Pervez Elahi from clinching the coveted post.
Mere disqualification would not give PTI an upper hand as it would even in that case lag behind with around four votes, meaning that their sole reliance would be on getting back the two minority seat MPAs and three woman seats after the disqualification of five MPA on quota seats, who voted for PTI.
These seats might be easy to obtain on paper, but the disqualified MPA’s (if ECP decides to do so) can approach SC under Article 63-A (5), and obtained a stay order, baring the ECP from further proceeding towards re-elections on 20 vacant seats and nominating MPAs on the instruction of party head on quota seats. In case this scenario occurs, PTI would still not have the numbers by their side.
‘Advisory decision only’
Speaking of the apex court’s decision, PML-N Deputy Speaker Atta Tarar said it was an advisory decision only, adding that ECP will decide the matter of defection.
He said that the election commission decision may differ from the Supreme Court’s advisory verdict. He said that PTI had tried to mislead ECP in this case, by falsely claiming that during a parliamentary meeting on 1 April, all MPA were communicated to vote for Pervez Elahi.
"We investigated the matter and found that no such meeting took place, after which PTI had withdrawn their plea," he said, recalling that a previous decision of SC had declared that if the party boycotts the elections, their parliamentarians are at free will to decide who to vote.
He said that if strictly seen according to the law, the entire parliamentary party of PTI should be disqualified for not voting for Pervez Elahi as the decision was to vote for Pervez Elahi. He said on 1 June Bajeeg Ur Rehman will assume the charge of the governor, ending the constitutional crisis in Punjab, and the oath of ministers will be administered.
‘Against the spirit of Constitution’
Similarly, Kunwar Dilshad, a former officer of ECP, said that the decision was against the spirit of the Constitution and added that it will bestow dictatorial powers on the party heads, and will deem the option of no-confidence motion redundant as no party member will ever dare to disagree with the party head.