The Politico-legal rollercoaster

The ongoing political crisis in the province of Punjab, especially as it relates to the election of the Chief Minister, has taken Pakistan down a rabbit hole of constitutional mystique. Even though the issue has now been settled by the honorable Supreme Court of Pakistan, through consent of the parties, it has left in its wake an unprecedented tangent in our constitutional history, and much intrigue about our politico-judicial paradigm.
Before discussing the Constitutional ‘settlement’ arrived at by the honorable Supreme Court, it is pertinent to briefly overview the winding road that led us here.
By way of background, a vote of no-confidence was brought against PTI’s Chief Minister of Punjab, Mr. Usman Buzdar, on March 28, 2022, under article 136 of the Constitution. On the same evening, Mr. Usman Buzdar submitted his resignation, which was accepted by the then governor, on April 2, 2022, and Punjab Assembly’s session for election for the new Chief Minister was summoned for April 3, 2022. On the said date, the people of Pakistan witnessed unprecedented upheaval on the floor of the Punjab Assembly, resulting in the said session for being prorogued for April 6, 2022. Deepening the crisis, on the same day the then government of PTI removed Chaudhry Sarwar from the post of the Governor Punjab and replacing him with Umar Sarfraz Cheema.
Thereafter, owing to further incidents of violence on the floor of the Assembly, the Deputy Speaker, Mr. Dost Muhammad Mazari, adjourned the session for April 16, 2022. In a response thereto, the supporters of Mr. Hamza Shehbaz, including 25 defector members of the PTI, immediately called a symbolic session and ‘elected’ Mr. Hamza Shehbaz as the Chief Minister, with the support of 199 members of the Punjab Assembly.
On the night of April 6, 2022, the Deputy Speaker, in supersession of his earlier notification, called a session of the provincial assembly, for election of the Chief Minister, on the following day, i.e. April 7, 2022. Recognising that the Deputy Speaker had, in effect, defected from party-line, the PTI government moved a vote of no-confidence against the Deputy Speaker himself and curtailed his powers to preside over a session of the provincial assembly. This curtailment of power, along with a prayer for holding the Chief Minister election was brought before the Lahore High Court on the following day, April 8, 2022. The honorable Lahore High Court decided the petition by directing that the Punjab Assembly calls a session, presided over by the Deputy Speaker, for electing the Chief Minister on April 16, 2022, as planned. As a result thereof, after much upheaval and controversy on the floor of the House, Mr. Hamza Shehbaz was elected as the 34th Chief Minister of Punjab with 197 votes, including the votes of 25 defected members of the PTI.
This did not settle the controversy. The new governor, Mr. Umar Sarfraz Cheema, refused to go down without a fight, and decided not to accept the election of Mr. Hamza Shehbaz, thereby deciding not to take oath from the Chief Minister elect. In the circumstances, Mr. Hamza Shehbaz approached the honorable Lahore High Court again which, on April 22, 2022, directed the President of Pakistan to nominate a suitable person for administering oath to the Chief Minister elect. Facing resistance from the President, the honorable Lahore High Court directed the Speaker National Assembly, Mr. Raja Parvez Ashraf, to administer oath to the Chief Minister Elect, resulting in the issuance of a formal notification to declare Mr. Hamza Shahbaz as the Chief Minister, Punjab.
The following seven weeks were spent in further constitutional confusion, as the new Chief Minister took his time to notify the cabinet members. In the meantime, the Prime Minster recommended the removal of Mr. Umar Sarfraz Cheema from the seat of the Governor Punjab. However, summary for the removal of Mr. Umar Sarfraz Cheema was twice rejected by the President, eventually, resulting in the appointment of Mr. Baleegh-ur-Rehman, as Governor Punjab. Simultaneously, even as this Constitutional crisis was playing out in Punjab, an important Presidential reference, concerning the fate of the defected members was pending adjudication before the honorable Supreme Court of Pakistan. This reference was decided by the honorable Court, vide order dated May 17, 2022. Importantly, the honorable Supreme Court declared that the vote of the defected members, even if casted, would not count towards any of the items listed under article 63A of the Constitution (including election for the leader of the house). In light of the honorable Supreme Court’s order, PTI approached the Election Commission of Pakistan (ECP) against its 25 defected members who had cast their votes in favor of Mr. Hamza Shehbaz. Faced with the declarative judgement of the honorable Supreme Court, the Election Commission had no choice but to disqualify the defected members, including 5 reserved seats members from the provincial assembly. In line with article 224 (6) of the Constitution, PTI approached the Election Commission for nomination of candidates to the reserved seats. However, the Election Commission declined this constitutional request on the pretext that members to the reserved seats will be nominated after recalibration of the House. Pakistan Tehreek-e-Insaf filed an appeal against this decision of the Election Commission, before the honorable Lahore High Court, along with raising ancillary challenges to the election of Mr. Hamza Shehbaz as Chief Minister.
This past week, the honorable Lahore High Court directed the Election Commission to nominate the members to the reserved seats, and subsequently declared the election of Mr. Hamza Shehbaz as illegal and unconstitutional. In the same breath, however, the honorable Lahore High Court directed the Deputy Speaker to “recount votes after excluding the 25 votes of the defecting members”, and to proceed with in accordance with Article 130 (4). Majority of the honorable Judges declared that Mr. Hamza Shehbaz would continue as Chief Minister throughout this time.
This judgement of the honorable Lahore High Court was challenged before the honorable Supreme Court, which decided the matter, through consent of the parties. The said order reflects the ‘agreement’, for a ‘political solution’ that was arrived at between the parties, under the able guidance of the honorable Supreme Court of Pakistan. Resultantly, “based on the unqualified consent of all parties”, the honorable Supreme Court decided that “the second poll for the election of Chief Minister Punjab in terms of the proviso to Article 130(4) of the Constitution shall be held on Friday, 22.07.2022 at 4:00 pm in the Punjab Assembly building”. During this time Mr. Hamza Shehbaz shall continue to serve as the Chief Minister, Punjab but would not exercise his administrative powers in a manner that may be prejudicial to the conduct of free and fair election. Importantly, during this time, Election Commission shall notify members to the reserved seats, while also conducting bye-election in accordance with the schedule already issued.
This politico-legal drama of Pakistan, spanning over two months, has been a roller-coaster constitutional ride for Pakistan and its democracy. It seems, more and more, that our democratic processes and the participants therein, are unable to resolve their mutual political differences, and can only resolve these through recourse to the Courts. If our democracy continues with this trajectory, soon there may be no need for the Parliament at all; just a royal decree, challengeable in courts for final decision. And the only people to blame for such a reductive governance mechanism will be the politicians who brought us here.

Saad Rasool

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be contacted at Follow him on Twitter

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