PML-N leader also prays for constitution of full court to decide matters involving interpretation and application of Article 63-A.

ISLAMABAD    -   Former Punjab chief minister Hamza Shehbaz Friday challenged the Supreme Court of Pakistan’s verdict which declared Parvez Elahi as Chief Minister of Punjab.

The former chief minister Punjab filed the review petition through Mansoor Awan Advocate against the Supreme Court order dated July 26 which thwarted former deputy speaker Dost Mohammad Mazari’s ruling and declared Elahi as the new CM of the province. In his petition, he cited CM Punjab Chaudhry Parvez Elahi, Chief Secretary Punjab and former Deputy Speaker Punjab Sardar Dost Muhammad Mazari as respondents.

The PML-N leader also prayed that a full court be constituted to decide the matters involving the interpretation and application of Article 63-A of the Constitution in this regard, as well as other connected matters and that they are heard together by the full court or at least a 12-member bench.

It was July 26 when a three-member bench of the apex court headed by Chief Justice of Pakistan Justice Umar Ata Bandial and comprised Justice Ijazul Ahsan and Justice Muneeb Akhtar after hearing the arguments of Pakistan Tehrik-e-Insaf and Speaker Punjab Assembly Parvez Elahi, declared, “Chaudhry Parvez Elahi as duly-elected Chief Minister of the Punjab in consequence of the runoff election held on 22nd July, 2022.”

The review petition adopted the stance that the Supreme Court in its Order erred in holding that observations made in District Bar Association with respect to Article 63-A of the Constitution were nothing more than “passing remarks not bearing relevance to the matter of vires nor explicating the actual or true words of the Constitution.”

It said that the Order erred in holding that the observations in District Bar Association with regards to the Party Head issuing the direction under 63-A in relation to, (1) election of the Prime Minister or the Chief Minister (Article 63A(1)(b)(i)), (2) a vote of confidence or a vote of no-confidence (Article 63A(1)(b)(ii)), and (3) a Money Bill or a Constitution (Amendment Bill) (Article 63A(1)(b)(iii)), were “passing remarks”. Further, the Order wrongly held that District Bar Association did not bear any relevance to the matter of vires nor did it explicate the actual or true words of the Constitution.

It said that the Order, in essence, has suggested that the words introduced and amended by the 18th Amendment in the Constitution are somehow not “actual or true words of the Constitution”. The 18th Amendment, just like the Constitution (Fourteenth Amendment) Act, 1997 (“14th Amendment”), introduced a particular formulation of words in the Constitution.

Some of those words make up Article 63-A of the Constitution.

The petitioner submitted that the counsel appearing for the petitioners in District Bar Association, as mentioned above, repeatedly argued that the party head’s binding direction was allegedly problematic because of the possibility of an unelected person influencing elected members in how they cast their 9 votes as to matters listed in Article 63A(1)(b)(i) to Article 63A(1)(b)(iii) of the Constitution. A majority of the 17-member bench not only recorded these arguments, but addressed them head-on. Therefore, these were not mere “passing remarks” but an outcome of a reasoned analysis.

It further stated that the 8-member plurality authored by Justice Azmat Saeed referred to the fact that in third-world countries, a party head is the reason why votes are cast in general elections because of the “trust and confidence that he evokes”. Therefore, Party Head giving a direction at the behest of a Parliamentary Party was not seen as problematic at all. Furthermore, the plurality also mentioned that this solution in the Constitution has been proposed to address the evil of votes of parliamentarians being bought for cash, and even though the Party Head directing the votes as to the matters listed in 63A(b)(i) to 63A(b)(iii) of the Constitution was a solution for now, it is not meant to be a solution for ever. These are hardly “passing remarks”. The same can be said of Justice Dost Muhammad Khan and Justice Faez Isa’s judgments.

The petitioner contended that importantly, the change proposed by the 18th Amendment, substituted the Head of the Parliamentary Party with the Party Head, who was to declare in writing that defection of a Parliamentary Party’s member had taken place. Therefore, through the 18th Amendment, the language of Article 63A of the Constitution was amended. With the provision of the Constitution amended, it is somewhat disingenuous to suggest that when the 18th Amendment, including the changes made in Article 63A of the Constitution, was considered and deliberated upon in District Bar 10 Association, that analysis and conclusion were merely “passing remarks” and not an explication of “actual or true words” of the Constitution.

It also said that the SC Order erred in holding that the short order in Presidential Reference No. 1 of 2022 rendered on 17.05.2022 was incorrectly and erroneously applied in the Deputy Speaker’s ruling dated 22.07.2022, as the short order in Presidential Reference No. 1 of 2022, just like the Order, fails to provide any guidance that if a direction from a Parliamentary Party is to be understood differently from a direction of the Party Head, then what is meant by the direction of the Parliamentary Party, and in fact there is no error in the Punjab Assembly’s Deputy Speaker’s ruling.