LHC urged to announce polls on CM’s slot

Elahi’s counsel calls Hamza a ‘usurper’

LAHORE:

Punjab Assembly Speaker Pervaiz Elahi’s counsel on Monday urged the Lahore High Court (LHC) to remove Chief Minister Hamza Shehbaz from the post of the provincial chief executive and announce new elections for the said post.

The counsel moved the court in light of the de-seating of 25 Pakistan Tehreek-e-Insaf (PTI) lawmakers under Article 63-A over non-compliance with party orders.

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.

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He argued that these defected MPAs had already been de-seated by the Election Commission of Pakistan while the Supreme Court of Pakistan had already decided that under Article 63-A votes of any defectors cannot be counted in the election of the chief minister.

On this basis, 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.

He relied on a number of judgements to say that a person who has taken a constitutional post contrary to the law is called the ‘usurper’. He argued that if a person holds an office illegally then it is a continuous wrong and the court is obligated to remove such a person immediately.

He drew the attention of the high court at the SC judgement in presidential reference to argue that the apex court has interpreted Article 63-A in its true sense, which is based on the principle of ‘poisonous tree’ namely ‘the fruit of the poisonous tree is poisonous and cannot be eaten’.

“No one can benefit from illegality. A thief cannot say that he be allowed to keep the stolen goods," on this principle, he argued that the votes of defectors cannot be counted as held by the Supreme Court. As regards to the question of whether the SC judgement would be applied retrospectively or prospectively, Barrister Zafar argued that the question of retrospectivity was of no relevance in the writ of quo warranto.

He said that the LHC was required to interpret Article 63-A and, while doing so, it was to use the Supreme Court judgement as a precedent and apply the interpretation of Article 63-A as made by the SC to the facts of this case.

While elaborating upon this issue further, Barrister Zafar argued that when the court interpreted a law it was in fact a decision of what the law was and had been since the day the law came into being.

He relied on a number of judgements to say that when a court “interprets a law that interpretation applies retrospectively and prospectively to all pending and future cases” and it was only the cases which had attained finality through a judgement of a court or other legal proceedings that could not be opened.

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.

Published in The Express Tribune, May 30^th, 2022.