Top court rejects govt’s full court request

CJ Bandial says powers given to parliamentary party so that party head could not become a dictator


APP July 25, 2022
A policeman walks past in front of the Supreme Court building in Islamabad, Pakistan, on November 28, 2019. (AFP/File)

ISLAMABAD:

The Supreme Court on Monday rejected the coalition government’s request for the formation of a full court to hear Punjab Assembly Speaker Pervaiz Elahi's petition against the provincial chief minister's election.

A three-member bench, headed by Chief Justice of Pakistan Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar, heard the petition filed by Elahi, who is also a candidate for the CM's office, against the ruling of Punjab Assembly Deputy Speaker Dost Muhammad Mazari over the fate of PML-Q votes in the Punjab CM's election.

Mazari, in his ruling, had rejected 10 votes of the Pakistan Muslim League-Quaid's (PML-Q) members relying upon the Supreme Court's verdict that votes of those lawmakers, who defied the party leadership's instructions, would not be counted.

The hearing of the case was adjourned till 11:30am today (Tuesday). A large number of policemen along with Rangers and FC personnel were deployed at and around the apex court's premises. During the course of proceedings, the court called former Supreme Court Bar Association (SCBA) president Latif Afridi to the rostrum.

The CJP observed that several former SCBA presidents were present in the courtroom, saying that the ongoing case was directly related to the SC's interpretation of Article 63A. Afridi said the country's current political situation was very complicated.

The SCBA's petition seeking review of apex court's judgement regarding interpretation of the Article 63A was pending, while the cases challenging the Election Commission of Pakistan's (ECP) decision to de-seat lawmakers over defection were also being heard.

He said the crises were deepening and the entire system was at stake. He requested the court to form a full court to hear all the cases together and also to avoid a constitutional crisis in the country. Chief Justice Bandial said he did not want to issue a one-sided order and also did not arrive at a decision under the advice of 10 former SCBA presidents.

The court would take a decision after hearing all parties in the case. SCBA President Ahsan Bhoon said he could not imagine pressurising the court, but noted that the review petition on Article 63A should be heard. The CJP while addressing Ahsan Bhoon, asked what was the hurry? “Let the court hear the case first.”

Barrister Ali Zafar, counsel for Elahi, said that he had also remained the SCBA's president. “The bar presidents should not be involved in such matters,” he added. Pakistan Peoples Party (PPP) counsel Farooq H Naek said he had submitted a petition earlier in the day which was rejected by the Registrar Office with objections.

The chief justice said the bench would hear all the stakeholders. PML-Q President Chaudhry Shujaat Hussain also filed an application, requesting the court to make him a party to the deputy speaker's ruling case.

Shujaat, in his application, said he wrote a letter to Deputy Speaker Mazari on July 22, who disregarded the PML-Q members' votes on its basis. The votes given to Elahi by the PML-Q MPAs were in violation of Article 63A, the application stated.

Advocate Irfan Qadir, counsel for the Punjab Assembly's deputy speaker, said there were several confusions over the matter and pleaded the court to form a full bench. He read out the court's order.

The chief justice asked the lawyer how the deputy speaker arrived at the conclusion that the court's order on Article 63A gave the impression that “it speaks about the party head”. He asked what would happen when the party head and the parliamentary party's decisions differed.

Advocate Qadir replied that it was not his job to define what questions arose there, as it was the court's task. At this, the chief Justice asked him to read out Article 63A. The article mentioned the party head and the parliamentary party, he added.

Qadir said he was extremely confused as to what the question was there. He said he could not understand the question. The chief justice then said the lawyer might have trouble in hearing the judges and warned him that he would be asked to sit at his seat if he cut off any judge while they were speaking.

Justice Ahsan asked if the same person could issue declarations and instruct a parliamentary party at the same time. At this, Qadir said the political parties' rights had been mentioned in the Constitution.
Justice Akhtar said the deputy speaker issued the directions during the Punjab CM's election on July 22 under the SC's ruling in the Article 63A case.

There was no confusion in the case anymore. The chief justice asked Qadir to inform the grounds on which a full court bench should be constituted. Qadir said everything would then be clarified by reading paragraphs one and two of the judgement on the presidential reference seeking interpretation of Article 63A.

He said Article 63A could not be read individually, adding that the party head issued directions to the members of his party. He said the political parties had an important role in the parliamentary democracy and the democratic system could be endangered due to the weakness of political parties.

He said defection from party's policy was a cancer. Justice Ahsan said only the members who were part of the assembly were included in the parliamentary party. “There is a difference between the political party and the parliamentary party.”

He asked whether the same person could issue a declaration as well as instructions to the parliamentary party. Advocate Mansoor Awan, counsel for Hamza Shehbaz, said he had already submitted his client's statement.

The chief justice asked the counsel which part of the apex court's verdict the deputy speaker referred to in his ruling. He asked on which paragraph the deputy speaker relied upon. Advocate Awan replied that as per the SC verdict, votes cast against the party's policy would be rejected.

Read More: Ruling coalition seething over SC ruling on Hamza's 'trustee CM' status

Justice Ahsan asked the counsel if the party leader could also be the head of the parliamentary party.

Awan said the deputy speaker had relied on paragraph three of the SC verdict in his ruling.
Justice Akhtar said Article 63A had been made part of the Constitution through the 14th Amendment.

He asked Awan to present his legal arguments regarding the party head. The counsel said the 18th Amendment had further elaborated on Article 63A. He said according to the verdict of former SC judge Sheikh Azmat's eight-member bench, all the decisions were taken by the party leader.

Justice Akhtar said there were two rules to cast votes in accordance with the party's policy. Prior to the 18th Amendment, Article 63A used to refer to the party head's instructions, while after the amendment, the party leader was replaced by the parliamentary party, he added.

He said there was ambiguity about the powers of the parliamentary party and the party chief prior to the amendment. According to Article 63A, the parliamentary party was given the authority to issue directions after the 18th Amendment.

He said there were rules to declare that a decision was against the Constitution. Advocate Awan said the court's ruling on Article 63A was contradictory to its previous decisions. He requested that a full court should be constituted. If a five-member bench felt that the previous decision of the court was incorrect, then a full bench could decide, he added.

The chief justice recalled that a senior parliamentarian had informed the court during the hearing on the presidential reference that the party head could also be a dictator which was why his role had been reduced and powers were given to the parliamentary party instead.

Justice Ahsan said there were hereditary parties in Pakistan. He asked how a leader residing abroad could issue instructions. He observed that the Constitution empowered parliamentary representatives.
“The parliamentary party decides who to vote for in the assembly.”

The chief justice said the court protected the assembly members from the party head's dictatorship in the presidential reference as several members complained about it. The party head would also have to listen to the opinion of the parliamentary party, he added.

Awan said the heads of four political parties were not part of the parliamentary party as Jamiat Ulma-e-Islam-Fazl (JUI-F) was named after its head, while Maulana Fazlur Rehman was not part of the parliamentary party.

The party head was answerable to the public, not the parliamentary party head, he added.
Justice Ahsan said the party head's role was very important as it was the party head who decided to send the declaration against defecting members.

“The parliamentary party will give instructions on who to vote for and the reference is sent by the party head.” He said a political party in essence was the same as its parliamentary party. Those who were elected to the assembly by the public were the ones with the mandate, he added.

Justice Ahsan referred to the United Kingdom's system where the party head had no role in parliament.
The deputy speaker, while accepting the court's decision as correct, referred to it in his ruling, he added.
Mazari’s counsel Qadir said his client had referred to the verdict to the extent of rejecting the votes.
Upon this, Justice Ahsan said it meant that the court's decision was recognised to the extent that the votes were rejected.

“The court's question is limited to whether the deputy speaker's interpretation of the verdict is correct.”
He said that the deputy speaker had exceeded the court's interpretation in his ruling.
He asked on whose directive the PML-Q members had voted. Hamza's counsel Awan said the ECP had accepted PTI Chairman Imran Khan's instructions during the previous CM's election.

Justice Ahsan questioned what connection the electoral body had to the case, while the chief justice asked Awan to read out the ECP's verdict. Awan said during the first election, Imran had issued directives to the PTI MPAs to vote for Elahi. When they had not done so, the ECP had de-seated them for not following the party head's instructions, he added.

He also submitted a copy of Imran's directives to the court. Justice Ahsan said there was a difference in the cases related to the previous election and the recent one. The position of the MPAs in the ECP was that they had not received any party instructions, while in the present case the members were saying that the parliamentary party had decided to vote for Elahi and no one had raised any objection.

He said the facts in the instant case and the one related to the dissident MPAs were different.
The dissident lawmakers had said that they did not receive any directives or show-cause notices, but the issue now was different, he added. Justice Ahsan said all the 10 PML-Q members cast their votes (for Elahi) and no one voted for the other side.

None of the 10 members said that the parliamentary meeting was not held, he added.
Advocate Awan responded that the party's policy was in essence the parliamentary party's instructions.
“If the court accepts the appeal of the de-seated MPAs against the ECP's verdict, the numbers in the assembly will change.”

He said it was requested that the cases should be clubbed together and heard by a full bench.
When the PML-Q president's counsel, Salahuddin, sought to begin his arguments, the chief justice pointed out that his client had not been made a respondent in the case yet and asked him to furnish arguments on the formation of a full bench.

Salahuddin told the court that his client also wanted a full bench to hear the case. The court then asked PTI counsel Zafar to argue on the formation of a full bench. Barrister Zafar recalled that Elahi secured 186 and Hamza 179 votes. According to Article 130, Elahi should be the chief minister, he added.

He said the deputy speaker had not mentioned Shujaat's letter prior to the voting but showed it at the time of his ruling.

He then proceeded to read out the ruling. However, the CJP directed Zafar to give PTI's reasons against the formation of the full court. Zafar responded that Article 63A was clear. “The head of a party has to issue the declaration in accordance with the parliamentary party's instructions.

The court has also already issued its detailed interpretation on Article 63A after several hearings earlier. “Even those who objected to the instructions issued during the party's meeting are bound by the party's decision.”The PTI counsel said there was no place in the Constitution for dictatorship by a political party's head.

“Article 63A and its judicial interpretation are very clear and unambiguous in that regard.”
He said the decision to form a full bench lay with the chief justice, who had refused to do so in 15 previous cases. He said the apex court had to stop hearing other cases if a full bench was formed.
He asked whether the court should stop all other work to hear only one case.

Zafar said the government wanted Hamza to stay as a temporary chief minister for as long as possible. “The court wrapped up the no-confidence vote case in four days. Clubbing other cases with the present one will just be waste of time,” he added.

The counsel said linking the case with the appeals of dissident lawmakers would be unfair. He said a quick decision was important to resolve the crisis in the province. “The review petitions can only be heard by a five-member bench.” The nation had complete trust in the court, he added. 

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