ISLAMABAD / LAHORE: After an hours-long hearing on the PTI’s petition against the Lahore High Court’s (LHC) order to recount the votes cast in the April 16 Punjab chief minister election, and conduct a second round of voting if required, the Supreme Court on Friday said that this process would now take place on July 22 — five days after by-elections on 20 Punjab Assembly seats are conducted on July 17 — and that incumbent chief minister Hamza Shehbaz would remain in office till then.
The apex court issued the verbal order as a three-member bench, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Jamal Khan Mandokhail, took up the petition filed on Friday.
The LHC had passed its order on Thursday while hearing the PTI and the PML-Q’s pleas against Hamza’s election and oath-taking, requiring the Punjab Assembly to convene on Friday at 4pm to conduct the recounting exercise, excluding the votes of PTI dissident lawmakers. The high court said if the required majority for Hamza — which is 186 votes in the 371-member strong house — to stay the CM is not secured after recounting, which is a certainty after the exclusion of 25 votes cast by dissident PTI lawmakers, the election will be held again under Article 130(4).
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. Punjab Chief Minister Hamza Shehbaz and Punjab Assembly Speaker Chaudhry Pervez Elahi, who is the PTI’s candidate for chief minister, also appeared before the court via video link as the PTI sought to defer the PA proceedings by seven days.
At one point, PTI’s counsel Babar Awan said that PTI had reservations against the Election Commission of Pakistan (ECP). Justice Bandial, however, said that orders would be issued regarding the implementation of the election code of conduct.
He stated that the court would issue a general order and that the parties should not waste time on small matters. “It would be better if you don’t make the case a family dispute,” he told Elahi and Hamza. PTI lawyer Imtiaz Siddiqui later told the court that consultation was held with the Advocate General of Punjab and Hamza’s lawyer and a consensus was reached on Hamza staying the CM till July 17.
At this, the CJP remarked that the court was glad both the parties had reached a consensus. “This is success for both the groups,” he said. The CJP said that both sides had been at odds for three months and the matter had finally been resolved in the apex court in three hours. He then asked: “CM sahab, do you have any intentions of rigging (the polls)?”
To this, Hamza replied that he would compete in the assembly and whoever is the suitable candidate would win. “I am a political worker. I have spent years in jail. We will ensure free and fair elections are held,” he said. Subsequently, Justice Bandial said that the court would use words acceptable to both parties in its written order.
He then announced that the elections for the chief minister would be held on July 22, adding that Hamza would remain CM until then. Earlier, Justice Ahsan remarked that it was clear the election could not be held on Friday. However, he did not agree with the PTI’s request for a seven-day extension on account of its MPAs being out of the country. He went on to say that if there was no objection to Hamza continuing as CM, the only point of contention was the timeframe.
One of the lawyers present during Friday’s hearing contended that it would be more appropriate to hold the CM election after the by-elections on 20 Punjab Assembly seats, scheduled for July 17. To this, Justice Ahsan said the argument had weightage. Justice Ahsan noted that as per the dissenting note in the LHC verdict, one more day could be given for holding the assembly session. “There should be an appropriate time for a revote,” he said.
One of PTI’s lawyers, Imtiaz Siddiqui, pointed out that the ECP had not yet notified PTI lawmakers on the reserved seats in the PA. At this, Justice Ahsan remarked that “the world would not come to an end” if the notification was not issued. Subsequently, the chief justice summoned Hamza and Elahi, adjourning the hearing till 4pm.
When the hearing resumed, CJP Bandial, while addressing Hamza and Elahi, said that the PTI’s stance was that adequate time had not been given for the election. “Another question is who will run the province if the court allows for more time,” the CJP said. According to the Constitution, a province can’t be run without a chief minister, he said. CJP Bandial also asked Elahi whether he had any objections to Hamza remaining chief minister. At this, Elahi said that ever since Hamza had been elected CM, police were “in control” of the provincial assembly.
Justice Ahsan said that there was no end in sight to the constitutional crisis in the province and called for solving it according to the Constitution. CJP Bandial observed that the court was informed Elahi did not object to Hamza remaining the CM until the local government polls. However, Elahi contended that he couldn’t trust Hamza in the prevailing situation. Justice Ahsan said that once the house was complete, the candidate who had the majority would become the CM. “We have summoned both of you (Hamza and Elahi) over this point.”
The second matter at hand is the lack of time in conducting the election, Justice Ahsan continued, adding that time could be provided for members within Pakistan to make it to the session. Subsequently, Elahi said that if Hamza wanted to stay the CM till July 17, he should “determine his powers”. “He can stay the chief minister but he should not harass [our] assembly members,” he said.
Justice Ahsan replied by saying that the courts were open if any violence took place in the PA. During the hearing, Awan urged the court to give orders for conducting free and fair elections. “It should also give instructions for notifying the reserved seats in the PA,” he said, adding that Hamza was not acceptable as the CM under any circumstances.
However, Justice Ahsan said that the court didn’t want to create a “constitutional vacuum”. He remarked that Elahi, the PTI’s ally, said one thing while the party said another. He also observed that a run-off election would be conducted after two days. “Whoever has the majority in two days will become the chief minister.”
Awan said that a decision should be taken under Article 187 of the Constitution, which empowers the Supreme Court to issue all such directions, orders and decrees, as it deems necessary, and secure the attendance of any person and production of any document for doing complete justice in any matter before it. “The court should give orders for a third person to hold clear and transparent elections,” he said.
However, CJP Bandial observed that Article 187 was not applicable in this case. “Three to five days would be appropriate for [holding] the run-off election,” Justice Bandial said. He went on to say that there were two options on the table: run-off elections in two days or Hamza remaining the CM till July 17. “You are saying the CM should immediately be removed,” he told Awan. “Alternative arrangements can be made for two or three days, but not for long periods.”
Awan sought time from the court to discuss the matter with the PTI’s senior leadership and Chairman Imran. The court, subsequently, adjourned the hearing for half an hour, granting the PTI time for consultation. At the outset of the hearing, PTI’s Babar Awan highlighted that one of the judges from the LHC bench had penned a dissenting note. However, Justice Ahsan pointed out that the judge in question had agreed with the majority decision on one point.
“It’s simple. The order says that 25 votes should be excluded from the 197 garnered [by Hamza],” he added. Awan said that the PTI merely wanted the maximum number of lawmakers to be allowed to cast their vote. The CJP, however, pointed out that this was not mentioned in the PTI’s plea. “We have come after reading your plea,” he said. “Basically, you do not believe that the decision is in your favour,” the CJP added. At this, Awan said that the PTI accepted the LHC decision in principle.
CJP Bandial then highlighted that four of the judges from the LHC bench had suggested holding the PA session on Friday while one had suggested holding it tomorrow. Do you accept tomorrow as the date for the PA session, he asked Awan. Justice Ahsan also enquired whether the MPAs who were unable to attend due to being out of the city/country could return within 48 hours.
During the hearing, Awan said that the PTI wanted to contest the election but “should be given a level-playing field”. He told the court that the Punjab chief minister election was held on April 16 in a session marred by chaos and violence. The police was called to the House after a scuffle broke out, he said. Justice Ahsan disagreed with Awan’s stance that PA proceedings could wait until all lawmakers were available. He reiterated that the LHC had instructed that the votes of 25 dissident PTI lawmakers should be excluded in the recounting exercise.
“After the exclusion of these 25 votes, Hamza’s election does not remain valid,” he said, adding that there was “no need for a simple majority of 186 votes in the second round”. “Your stance is your members have gone abroad,” the judge said, addressing Awan.
However, Awan clarified that he was not asking to wait for the lawmakers. But “adequate time should be provided so that the maximum number of members can participate in the voting,” he added. During the hearing, CJP Bandial questioned how the apex court could intervene in the matter of scheduling the PA session. “Should we fix July 2 as the date for voting, as suggested by the dissenting judge?” he asked. “Are you ready to vote tomorrow?” the CJP further asked Awan. Justice Ahsan further remarked that those members who were in Pakistan could reach within a day.
At this point, the PTI’s lawyers asked to defer the re-election process for seven days to which Justice Ahsan remarked that this would not be appropriate. He further said that it would not take lawmakers who were in the country more than 24 hours to reach the assembly.
Awan reiterated that the Election Commission of Pakistan had not yet notified lawmakers on the five reserved seats in the PA. At that, the CJP questioned: “Do you want that the province remains without a chief minister for seven days?” Justice Ahsan asked about the Constitution’s stance on who runs the province in the absence of the CM. “Who can run the province when the chief minister is not available?” he asked. He added that at the time of the Punjab CM’s election, there was no clarity on Article 63-A, which pertains to disqualification on grounds of defection.
At one point, Awan told the court had he had 10 days in mind but had instead asked for seven. Justice Mandokhail said that the matter of adequate time should first be concluded before deliberating on the remaining points. Justice Ahsan then said the governor could ask a chief minister, who was elected in a lawful manner, to continue working.
Justice Ahsan observed that there would not be a provincial cabinet without a chief minister. The CJP further stated that the PTI had to prove its majority in the House. “Twenty-five votes have been excluded. How many members does that leave the PTI with?” PTI’s lawyer Faisal Chaudhry replied that after the exclusion of 25 members, the party’s numbers had gone down to 169.
The court observed that this meant the PTI did not have the majority on its side, to which Chaudhry replied by saying that nobody had the majority. During the hearing, CJP Bandial remarked that giving the reins of the province to the governor would be “unconstitutional”. He observed that the by-elections would be held on 20 seats in the provincial assembly on July 17. “How can the province be brought to a halt till then?” he asked. “According to the Constitution only elected representatives can run a province,” he said, giving the PTI half an hour to ponder this point before adjourning the hearing.