Punjab Chief Minister Hamza Shehbaz has argued that the Supreme Court’s interpretation of Article 63-A of the Constitution — which pertains to disqualification on grounds of defection — does not apply to his election retrospectively.
Hamza submitted his response on Monday to the Lahore High Court on the petitions challenging his election as the chief minister.
In his written reply, Hamza argued that the election of the chief minister was lawful and constitutional as it was held on the orders of the high court and before the interpretation of Article 63-A by the Supreme Court.
He prayed the court to dismiss petitioner Munir Ahmed’s plea challenging his election “with costs”.
Ahmed’s is one of the pleas clubbed by the LHC with others challenging Hamza’s election, including that of the PTI.
Hamza was elected as the Punjab chief minister on April 16, during a provincial assembly session that was marred by mayhem. He polled 197 votes, 11 more than the required 186, including 25 dissident PTI MPAs that were crucial for his victory.
Questions have been raised on the validity of his election since the SC said in a May 17 verdict that the votes of defecting lawmakers were not to be counted during a chief minister’s election and the Election Commission of Pakistan subsequently de-seated 25 of the PTI’s MPAs from the Punjab Assembly under Article 63-A.
The PTI challenged Hamza’s election on May 19, following which the court had sought the embattled chief minister’s reply on the matter.
Hamza’s lawyer Khalid Ishaq submitted 16-page reply after the LHC fined him and the Punjab government Rs100,000 each on the previous hearing on May 25 over their failure to submit their replies.
In his reply Hamza explained that while his election was held on April 16, the SC’s interpretation of Article 63-A was issued on May 17. Hence, the election could not be governed by the SC order, he argued, adding that “it is settled law that any interpretation/annunciation of law by the superior courts is not applicable retrospectively, unless expressly stated otherwise”.
Additionally, the SC order was in connection with a no-confidence motion in the National Assembly and as such, “it cannot be said to have affected the said election”.
He stated that the election was “conducted strictly in accordance with the Constitution in compliance of the orders passed by the Hon’ble Court” and thus “cannot be said to have been a result of any mala fide”.
Hamza recalled that he had filed a petition in the LHC to ensure “that the constitutional requirement of holding election of the chief minister” be implemented after the resignation of the former CM.
He added that the court “was pleased to accept the Answering Respondent’s prayer and directed that the election be conducted on 16-04-2022 by the Deputy Speaker”.
Hamza maintained that the petition against his election was not maintainable under Article 199 of the Constitution, which, the Punjab CM said, barred the petitioner from invoking the constitutional jurisdiction of the LHC as they were not an “aggrieved party” in the case.
He also argued that petition was also not maintainable in light of an ouster provided under Article 69, read with Article 127, of the Constitution.
“A bare perusal of the contents of the petition under reply leads only to one ineluctable conclusion that the proceedings called in question are the ‘proceedings in the House’ and the averments made by the petitioner are, at best, mere irregularities of procedure,” he said, adding that the jurisdiction of the LHC could not be invoked in such cases due to the ouster provided under the said articles that barred a party from challenging an election in the House.
He further said that his election had been challenged on the basis of “unconstitutional, illegal, unlawful” assumption of “purported jurisdiction/power” by outgoing Punjab Governor Omar Sarfaraz Cheema, “whereby he purportedly attempted to declare the election in the House as illegal and unlawful”.
However, he argued, that the LHC had already held that the governor did not have any such power or authority to give such a declaration.
Terming the contents of the petition “baseless”, he said they did not form the “lawful basis for invoking extra-ordinary constitutional jurisdiction of judicial review under Article 199 of the Constitution”.
PTI’S ARGUMENTS: Barrister Ali Zafar said Hamza needed 186 votes to win the chief minister’s election and he bagged 197, which included those cast by the 25 dissidents PTI MPAs.
“Hamza has now lost his majority,” the barrister said, as he went on discuss the SC’s interpretation of Article 63-A.
“The question before the court is whether these 25 votes [of dissident lawmakers] will be counted,” the counsel said. “Our case is that after the Supreme Court’s interpretation, if the votes of dissident lawmakers are discounted, Hamza loses his majority.”
Referring to the SC’s decision, he said the votes of dissident lawmakers were not to be counted for a chief minister’s election.
“The question is not whether the Supreme Court’s decision could be applied retrospectively, but the question is that what has it decided,” he said.
At that, LHC Chief Justice Muhammad Ameer Bhatti raised the question that if the decision was applied retrospectively, whether all past decisions be reversed as well.
Barrister Zafar said the ECP had denotified the dissident lawmakers. “This means we are going by the election commission’s decision because it has denotified [them].”
Continuing his arguments from there, the PTI’s counsel said no one was to take advantage of “lawlessness” and gave the example — stressing that he was only giving an example here and not calling anyone a “robber” — of a person admitting to committing a robbery but not returning the stolen items.
The LHC CJ concluded the hearing having noted that the SC’s short order stated that dissident lawmakers’ votes would not be counted.
He then adjourned the hearing till tomorrow (Tuesday), directing the PTI’s counsel to continue his arguments then.
THE PETITION: The PTI petition was filed by MPAs Mohammad Sibtain Khan, Zainab Umair, Mian Mohammad Aslam Iqbal, Syed Abbas Ali Shah and Ahsan Saleem Baryar.
It stated that the session held for conducting the election witnessed “immense chaos and most unfortunate events”.
Deputy Speaker Mazari took “unlawful” aid from the police and provincial officials for holding a “sham and fraudulent” election, following which he communicated that Hamza had won, the petition said.
It noted that votes of 25 dissident PTI MPAs were also counted in the final tally for Hamza. While the then governor Cheema had refused to accept the election results, Hamza was administered the oath due to “judicial overreach”, it contended.
“As per the investigation conducted by the [then] honourable governor of Punjab, the respondent secretary of the provincial assembly has tendered a report detailing the various dimensions of the election held on 16.04.2022 and has categorically informed the [then] honourable governor that the referred elections were/are unlawful; thus consequently the certificate issued by the respondent deputy speaker/acting speaker was/is without any lawful sanction/legal authority,” the petition reads.
According to the petition, Hamza’s election was in violation of the Constitution and the Rules of Business of the Punjab Assembly. It recalled that Hamza had approached the LHC for holding the election, adding that he treated it as an urgent matter because he had the support of 25 dissident PTI MPAs, which was a violation of Article 63-A of the Constitution.
An analysis of the Supreme Court’s interpretation would lead to the conclusion that the chief minister’s election was unlawful, it stated.
“On this ground alone and keeping in view the scope and intent behind Article 63-A of the Constitution, the election held on 16.04.2022 [should] be declared as being without lawful authority and consequently be struck down.”
The petition also claimed that the election had lost its sanctity because the assembly floor was occupied like a “beehive by private unwanted persons, including civilians, ghundas (thugs), guests, persons of various agencies and local police”.
In addition, voters had been intimidated and forced to cast their votes in Hamza’s favour, it stated.
The petition also stated that members who were going to vote for PTI-PML-Q’s candidate Chaudhry Parvez Elahi were “pushed out” from the gallery and therefore, could not participate in the election.
The petition requested the LHC to declare Hamza’s election void ab initio (illegal) “in the interest of justice and fair play”.
It also requested the court to declare the office of the chief minister vacant and stop Hamza from working and portraying himself as the chief executive.