PTI's Barrister Ali Zafar won five legal victories in a row

Rulings on PTI counsel's petitions have rewritten rules of Pakistan’s parliamentary democracy

ISLAMABAD:

Pakistan Tehreek-e-Insaf’s Barrister Ali Zafar is making strides in the superior courts after winning five high-profile cases in a row, shaking the country’s political earth with each legal victory secured for the party.

The rulings on his pleas have rewritten the rules of Pakistan’s parliamentary democracy, notably his successful bid to convince the majority judges of the Supreme Court that voting by lawmakers against party directions under Article 63A automatically nullifies their vote.

Although other legal wizards of the PTI have been also nailing their colours to the mast in the superior courts since April. However, Ali Zafar holds the distinction of grabbing key victories that have effectuated tectonic shifts in Punjab – the political heartland of the country now under PTI’s control after a series of single-minded, well-crafted legal bids.

"I argued that the votes of the members which have been cast contrary to the directions of the parliamentary party have to be disregarded and cannot be counted under Article 63A of the Constitution,” Zafar, who is also chairman of Insaf Lawyers' Forum (ILF), said while talking to The Express Tribune.

He shared that his argument was based on the principle that the fruit of a poisonous tree was fated to be poisonous and therefore, cannot be eaten.

The apex court subsequently accepted this proposition on May 17 when it delivered its verdict on the presidential reference seeking interpretation of Article 63-A – a godsend ruling for the PTI that employed the premises of the ruling as a mainstay for its legal battles since ouster.
Sieving the ambiguities out

More than a month later, when the same provision of the Constitution became a bone of contention in the Punjab Assembly and landed back at the SC’s bench for clarity, Zafar appeared before the court again to challenge Deputy Speaker Dost Mazari’s decision to not count 10 votes polled in Elahi’s favour.

This time, the ruling pronounced from the three-member bench served to sieve all ambiguities out from the majority opinion, enunciating the nuances and technicalities.

“I had contended that the 10 votes could not be discarded because no directions of the parliamentary party had been violated by any of the members and therefore, Article 63-A could not be applied,” Zafar said.

Twenty-five dissidents

The PTI was still reeling from twin painful defeats it faced one after the other until May. Twenty-five of its members had pedalled out of the party’s folds and voted for Hamza Shehbaz in April 16 chief minister’s elections – a few days after it lost Islamabad to a mighty assemblage of parties that ‘roped in’ its allies and muscled the PTI out of power.

In Punjab, the decisive factor in Hamza’s ascension to office was the support of dissident PTI lawmakers that were part of the Jahangir Tarin and Aleem Khan groups. Both groups announced they were backing opposition candidate Hamza Shehbaz.

However, the calculations had altered in light of the SC’s majority opinion on Article 63A.
The PTI's counsel mounted a legal challenge before the Election Commission of Pakistan (ECP) that the MPAs were issued instructions by the party's chief whip in the Punjab Assembly, as well as, Secretary General Asad Umar through a letter.

Subsequently, on May 20, the ECP ruled that the 25 PTI lawmakers who voted in favour of PML-N’s Hamza Shehbaz as Punjab chief minister would be de-seated for defying their party.
“Everybody was convinced that we will not be able to secure relief from the ECP. But we won the case and the 25 members were de-seated and by-elections were ordered. This was the second victory without which the elections would have never taken place,” he said.

Five important seats

However, in the wake of the decision that supposedly put the lid on the matter, the question that still lingered unanswered was as to who will replace the five de-seated defectors elected on reserved seats.

In order to salvage the uncertain political future of the disqualified lawmakers, the PML-N deliberated upon ways in which legal nuts and bolts could be tapped into. The allocation of five vacant reserved seats assumed a great deal of political weightage. Of the 25 de-seated PTI MPAs, five were elected on reserved seats, which were to be distributed among parties on the basis of their current strength in the PA.

“The opposition parties were of the view that the five members will be determined after the election of the 20 members on the general seats on the basis of proportionality. Hence, they requested ECP to wait for the completion of the House after the by-election. PTI’s case before ECP was that the five seats should be filled from the list of nominees of PTI,” the lawyer said.

While the electoral watchdog decided to wait for the elections, Zafar filed a writ petition in the Lahore High Court (LHC) which then set aside the ECP’s decision and directed that the five reserved seats are to be filled only by the PTI.

Accordingly, five members of the PTI were notified on these seats which became instrumental in enabling the numerical strength for Elahi to win the Punjab CM elections.

Challenge to Hamza’s office

Emboldened by a series of victories in his deliberate and well-crafted legal defence, Ali Zafar went on to challenge the election of Hamza Shehbaz by filing a writ of quo warranto in the Lahore High Court (LHC).

The LHC ordered the re-counting of votes for the election of Punjab's chief minister held on April 16, instructing that the votes of 25 dissident PTI lawmakers be excluded from the counting process.

A five-member bench comprising Justice Sadaqat Ali Khan, 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.

"My argument was that in the first round of the election, a chief minister needs a majority of the total House. Accordingly, in the Punjab Assembly this meant that a person who has acquired 186 votes could become the CM,” Zafar explained.

However, since the Supreme Court had ordered that 25 defectors’ votes are to be ignored, Hamza had actually secured only 172 votes which meant that he was not validly elected under Article 130(4).

He requested the court to order run-off elections for the chief minister’s slot to settle the constitutional crisis.

“The matter was fixed before the full bench of five members. Hamza’s lawyers and the opposition lawyers argued that the election had validly taken place and that the judgement of the Supreme Court in the presidential reference was not applicable retrospectively,” the lawyer said, recapping the events and arguments in the case.

“The court accepted my argument and passed the judgement that Hamza has not been elected as the chief minister in the first round of election because he has not obtained 186 votes and therefore was not validly elected chief minister."

“The court held that the judgement of the Supreme Court in the presidential reference was applicable since the very beginning when Article 63A was introduced. The reason being that it was a declaration of law by the court and there was no question of retrospectivity.”

In a short order issued after the hearing, the LHC instructed that votes in the election held on April 16 be recounted after excluding 25 votes of the defecting lawmakers. If the required majority for Hamza to stay the CM is not secured, the election will be held again under Article 130(4), unless another candidate has majority votes.

According to Article 130(4), in the second round of voting, a member will not require 186 votes but simply needs a majority of those "present and voting" to be elected the chief minister.