SC reserves decision on full court formation in Pervez Elahi’s petition

SC seeks NAB response on amendments in law

ISLAMABAD, Jul 25 (APP): The Supreme Court on Monday reserved its decision regarding formation of a full court to hear Punjab Assembly Speaker Pervez Elahi’s petition against the provincial chief minister’s election.

A three-member SC bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar heard the petition filed by Chaudhry Parvez Elahi, 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 Punjab CM’s election.

Deputy Speaker Sardar Dost Muhammad 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.

A large number of policemen along with personnel of Rangers and FC 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 and said the ongoing case was directly related to the SC’s interpretation of Article 63-A.

Latif 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 63-A 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 bench 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 Pervez 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’s (PPP) counsel Farooq H Naek said he had submitted a petition earlier today which was rejected by the Registrar Office with objections. To which, the chief justice said the bench would hear all the stakeholders.

PML-Q President Chaudhry Shujaat Hussain also filed application, requesting the court to make him a party to the deputy speaker’s ruling case.

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

Irfan Qadir replied said 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 63 (A). The article mentioned the party head and the parliamentary party, he added.

Irfan 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 Ijaz asked if the same person could issue declarations and instruct a parliamentary party at the same time. At this, Irfan Qadir said the political parties’ rights had been mentioned in the Constitution.

Justice Munib 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 63(A) case. There was no confusion in the case anymore.

The chief justice asked Irfan Qadir to inform the grounds on which a full court bench should be constituted.

Irfan Qadir said everything would then be clarified by reading paragraphs one and two of the judgement on the presidential reference seeking interpretation of Article 63-A. He said Article 63-A could not be read individually. The party head issued directions to the members of his party, he added.

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 the defection from party’s policy was a cancer.

Justice Ijaz Ul Ahsan said only the members who were part of the assembly were included in the parliamentary party. There was a difference between the political party and the parliamentary party, he added.

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’s verdict, votes cast against the party’s policy would be rejected.

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

Mansoor Awan said the deputy speaker had relied on paragraph three of the SC verdict in his ruling.

Justice Munib Akhtar said Article 63-A had been made part of the Constitution through the 14th Amendment. He asked Mansoor Awan to present his legal arguments regarding the party head.

The counsel said the 18th Amendment had further elaborated on Article 63-A. 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 Munib said there were two rules to cast votes in accordance with the party’s policy. Prior to the 18th Amendment, Article 63-A 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 63-A, 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 Mansoor Awan said the court’s ruling on Article 63-A was contradictory to its previous decisions. He requested that a full-court bench 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 given to the parliamentary party instead.

Justice Ijaz 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 decided who to vote for in the assembly, he added.

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 the party head’s dictatorship. The party head would also have to listen to the opinion of the parliamentary party, he added.

Mansoor Awan said the heads of four political parties were not part of the parliamentary party as Jamiat Ulma-e-Islam-Fazal (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 Ijaz 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 would give instructions on who to vote for and the reference was sent by the party head, he added.

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 Ijaz Ul Ahsan referred to the United Kingdom’s system where the party head had no role in the parliament. The deputy speaker, while accepting the court’s decision as correct, referred to it in his ruling, he added.

Irfan Qadir, counsel for Dost Mazari, said his client had referred to the verdict to the extent of rejecting the votes.

Upon this Justice Ijaz said it meant that the court’s decision was recognised to the extent that the votes were rejected. The court’s question was limited to whether the deputy speaker’s interpretation of the verdict was correct, he added.

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 Shehbaz’s counsel Mansoor Awan said the ECP had accepted PTI Chairman Imran Khan’s instructions during the CM’s previous election.

Justice Ijaz Ul Ahsan questioned what connection the electoral body had to the case, while
the chief justice asked Mansoor Awan to read out the ECP’s verdict.

Awan said during the first election, Imran had issued directives to the PTI’s MPAs to vote for Pervaiz 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 Ijaz 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 showcause notices, but the issue now was different, he added.

Justice Ijaz 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.

Mansoor Awan responded that the party’s policy was in essence the parliamentary party’s instructions. If the court accepted the appeal of the de-seated MPAs against the ECP’s verdict, the numbers in the assembly would 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’s counsel Ali Zafar to argue on the formation of a full bench.

Barrister Ali Zafar recalled that Pervaiz Elahi secured 186 and Hamza 179 votes. According to Article 130, Parvez 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 Ali Zafar to give PTI’s reasons against the formation of the full-court bench.

Ali Zafar responded that Article 63-A was clear. The head of a party had to issue the declaration in accordance with the parliamentary party’s instructions. The court had also already issued its detailed interpretation on Article 63-A after several hearings earlier.

Even those who objected to the instructions issued during the party’s meeting were bound by the party’s decision. he added.

The PTI’s counsel said there was no place in the Constitution for dictatorship by a political party’s head. Article 63-A and its judicial interpretation were 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.

Ali Zafar said the government wanted Hamza to stay as a temporary chief minister for as long as possible. The court had wrapped up the no-confidence vote case in four days. Clubbing other cases with the present one would 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.

He said the review petitions could only be heard by a five-member bench. The nation had complete trust in the court, he added.