The Lahore High Court on Thursday ordered the presiding officer, Punjab Assembly Deputy Speaker Dost Muhammad Mazari, to recount votes for the election held for the chief minister’s slot on April 16 – excluding the 25 votes of the defecting PTI members.
The session for this purpose would resume on Friday (today) at 4pm. “All the functionaries under the Constitution or law, within their respective share of powers, shall act jointly and severally to implement the directions by this court, the high court's order read.
A five-member larger bench, led by Justice Sadaqat Ali Khan and also comprising Justice Shahid Jamil Khan, Justice Shehram Sarwar Chaudhry, Justice Sajid Mahmood Sethi and Justice Tariq Saleem Sheikh announced the verdict with a 4-1 majority.
The bench was hearing different petitions challenging three LHC’s orders on the administration of oath to Hamza as the Punjab chief minister, the contest held for the slot on April 16 and the oath administered to him by the National Assembly speaker.
The PTI’s version was that all that had happened violated the Constitution and rules.
“As a consequence, if required majority, under Article 130(4), is not secured by any candidate, he [presiding officer] shall proceed for second and further polls under its provisos for completing the process of election as required under Article 130(4), unless a candidate is elected by majority votes,” the order read.
“Though on recounting as directed, the consequential procedure and effect shall be in accordance with the Constitution and rules made thereunder, nevertheless, for clarity it is explained that Hamza Shehbaz shall cease to be [the] chief minister, if he loses the required majority after exclusion of 25 votes by [the] presiding officer and the communication of his being elected candidate under Rule 21 along with notification dated April 30, 2022 shall deem to have been quashed.”
The court further noted that in this eventuality, functions performed and powers exercised by Hamza as the chief minister and his cabinet, in accordance with law, would be protected under the “de facto doctrine”.
“The session so resumed shall not be prorogued till the election process is completed and [the] presiding officer intimates the result of [the] elected chief minister to the governor under Rule 21. The governor shall perform his duty, under Article 130(5), of administering oath without any hesitation and by ignoring any apprehension regarding conduct election, at any time before 11am very next day.”
The bench observed that it could not ignore the disorder in various sessions of the provincial assembly.
“Therefore [we] are constrained to observe and direct that any attempt of disorder from any quarter shall be taken as contempt of court and shall be proceeded [against] accordingly by this larger bench on formal information by any person.”
However, the bench’s order stated that the appeals on the oath of the chief minister by the National Assembly speaker were disposed of.
It added that the reasons and decision on the constitutional questions, pleaded and argued during the proceedings, would be released later.
Read Hamza most likely to secure an ‘easy win’
“We appreciate that on our verbal instructions, the print and electronic media has reported proceedings before this bench professionally and carefully, however, some vloggers have scandalised the proceedings recently. We, therefore, direct the FIA [Federal Investigation Agency] and PEMRA [Pakistan Electronic Media Regulatory Authority], having jurisdiction in the matter, to take legal action on their own notice and if so informed by any person.”
The order read that this larger bench would initiate contempt proceedings for scandalising the proceedings before it, if so brought formally before this court by any person.
Dissenting note
In his dissenting note, Justice Sajid Mahmood Sethi said the votes of the 25 PTI dissidents cast in favour of Hamza were admitted. “Therefore, there was no need to repeat the exercise of counting/recounting,” he added.
The judge noted that the total membership of the Punjab Assembly was 371, and the requisite majority to become chief minister was 186 votes.
“It is evident from record and admitted by Mr Ali Zafar, advocate for [the] petitioners before this bench as well as in his written submissions that [the] respondent – Muhammad Hamza Shehbaz Sharif – obtained 197 votes [a] fact also confirmed by respondents.”
The dissenting judge wrote in his note that after excluding the 25 votes of the defectors, the remaining votes at the credit of Hamza were 172. “Therefore, he is not [a] member elected within the contemplation of Article 130(4) of the Constitution and being a stranger to the office of chief minister, cannot be allowed to hold the office; besides, it will give political advantage to the respondent over the other contesting candidate, thus, [the] office of a non-elected member cannot be protected which even otherwise appear to be against the mandate of Article 133 of the Constitution.”
The judge observed that the Constitutional petitions were allowed in the manner that the letter dated April 16, 2022, addressed to the governor of Punjab by the deputy speaker, pronouncing Hamza as the successful candidate for the office of the chief minister, was contrary to the facts.
“And notifications dated April 30, 2022, regarding administration of oath by respondent Muhammad Hamza Shehbaz Sharif as [the] chief minister and cessation of Mr Usman Ahmed Khan Buzdar to hold the office of [the] chief minister are set aside being illegal and without lawful authority. Consequently, Mr Usman Ahmed Khan Buzdar, is restored to the office of [the] chief minister of Punjab with immediate effect, as he was on said date."
As the bench’s head announced that the PTI’s writ petitions are allowed, the intra-court appeals were disposed of. The detailed order will be placed on the LHC’s website.
The PTI and PML-Q lawmakers in the LHC seemed to be congratulating each other and the rest on TV transmissions terming the LHC’s decisions as “remarkable”.
Some of them said it was the “victory of justice”. However, when the short order emerged later, the PTI lawmakers and lawyers claimed that they would challenge the decision in the Supreme Court. They said neither the contest of April 16 was discarded, nor the chief minister's notification or his oath was set aside.
Later, Barrister Ali Zafar approached the Punjab Assembly to hold a meeting with PML-Q leader and Speaker Chaudhry Parvez Elahi – who was the rival candidate for the chief minister’s post against Hamza.
They decided to challenge the LHC’s larger bench’s decision in the Supreme Court.
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