-Party Head also has to listen to Parliamentary party’s opinion, observes CJP
-Says full bench is formed only in serious matters
-Justice Ahsan remarks Parliamentary party decides who to vote for in the Assembly
By Anzal Amin
ISLAMABAD: The Supreme Court on Monday rejected the coalition government’s request to form a full court bench on petitions related to the recently held Punjab chief minister’s re-election — including a review of its interpretation of Article 63-A.
The short order was announced after a marathon hearing that began at 1pm and lasted more than eight hours, during which time a three-member bench comprising Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar heard the arguments of government and its allies’ counsels, who repeatedly urged the top judge to constitute a full bench and prevent the case from being politicised.
The request for the full bench was made by the government during the hearing of a petition filed by PML-Q leader Chaudhry Parvez Elahi challenging Punjab Assembly Deputy Speaker Dost Mohammad Mazari’s decision in the chief minister’s re-election last week, which led to Hamza Shehbaz’s victory.
During the re-election, Mazari had decided against counting the votes of 10 PML-Q lawmakers, which were cast in Elahi’s favour, citing a letter written by PML-Q President Chaudhry Shujaat Hussain in which he had instructed them to vote for Hamza instead.
During the previous hearing on Saturday, they had allowed Hamza — who was re-elected on July 22 — to remain “trustee” chief minister till Monday (yesterday).
As the arguments were made inside the court, outside it, members of the government, including Interior Minister Rana Sanaullah and Law Minister Azam Nazir Tarar — made it clear that they would boycott the court proceedings on the matter, if their request for a full bench was turned down.
Here are the main developments of the hearing:
• CJP Bandial remarks party head will have to listen to the parliamentary party’s opinion.
• CJP says full bench is formed only in serious matters and that currently only two more judges are available
• Justice Ahsan says parliamentary party decides who to vote for in the assembly.
• Justice Ahsan observes deputy speaker exceeded court’s interpretation in his ruling.
• Court says facts in re-election case different from case on dissident MPAs.
• PTI lawyer contends judicial interpretation of Article 63-A was clear and unambiguous.
• “Trustee” Punjab CM Hamza Shehbaz requests court to constitute a full bench to hear Elahi’s petition, clubbed with the review of SC’s interpretation of Article 63-A.
The court twice took breaks during the hearing to deliberate, with the CJP. When the hearing resumed after the first break, Law Minister Azam Nazir Tarar drew the court’s attention on the fact that Article 63-A’s review had still not begun. “This is a grave matter. This is a province of 12 million [people].”
The chief justice reminded the law minister that it was a five-member bench that had “sent the [previous] prime minister home”, referring to the court’s unanimous verdict in March that had restored the National Assembly as well as the no-trust move against Imran Khan, which eventually led to his ouster.
With the federal government, in its statements outside the court, threatening to boycott the case if a full bench was not formed, the chief justice said: “If the incumbent government is not accepting the Supreme Court’s [supremacy] then it is a grave [concern].”
The minister said that forming a full court would increase the judicial credibility of the court.
Meanwhile, Deputy Speaker Dost Muhammad Mazari’s lawyer Irfan Qadir referred to Justice Qazi Faez Isa’s case, which he said was heard by 10 judges. “That was the matter of a judge. This is the matter of an entire province.”
“I am not saying that the [bench’s] neutrality is in question,” he clarified, adding that if a full court was constituted, “the respect and confidence in court” would increase.
“There is an impression that [certain] cases go to the same bench,” he added.
“A full court bench is constituted in serious matters,” the top judge replied.
At one point, the CJP remarked that there was no need to prolong the case. “In our view, the deputy speaker has violated Article 95.”
Mazari’s lawyer argued that the Supreme Court Bar Association’s (SCBA) petition on Article 63-A’s review could not be separated from the re-election case.
He reasoned that if the court ruled that the votes of dissidents lawmakers would be counted, the matter would get even worse.
“Along with the politicians, the judiciary should also be united in its decisions,” he pointed out, clarifying that he was not critiquing the court.
“We will all leave but the Constitution should remain supreme,” the lawyer added.
The deputy speaker’s counsel said there was a difference between the head of the party and the head of the parliamentary party.
“The party that wanted to make Parvez Elahi the chief minister used to call him a dacoit,” he said while referring to PTI Chairman Imran Khan’s remark about Elahi from years ago.
“There is an impression that the court was tilted towards those who broke the Constitution and pushed the country towards destruction,” he said.
At this, the chief justice remarked that “social media only listens to narratives, not facts”. “We gave a chance to all the parties in this case to make their arguments,” he said.
In this case, he said, “we just have to see if the party leader can overrule the decision of the parliamentary party.”
“The parliamentary party represents the common man in the assembly,” he observed, noting that the 18th Amendment had given powers to the parliamentary party.
“We have to strengthen the democracy and parliament, and not individuals,” he remarked.
PPP’s counsel Naek interjected that it was also to be seen if the matters of the parliament could be taken to court.
The CJP replied: “When the Constitution is broken in the parliament, matters will come to the court.”
At one point, Justice Ahsan remarked: “The only question is that if the deputy speaker misinterpreted our decision, we will have to correct him.”
Naek reiterated that the court should not intervene in the matters of the parliament.
“What is good for the goose is good for the gander too.” the judge replied, adding that the court had a legal question in front of it.
Subsequently, PML-Q lawyer Salahuddin took the rostrum and said: that in his opinion “instructions to the parliamentary party are given by the party head,” as he also urged the formation of a full court bench.
Justice Akhter said that every member of the parliamentary party was important, emphasising that the party should not be under the “dictatorship of its head”.
“Decision are taken with the consultation of the parliamentary party,” the judge said.
The PML-Q counsel said the decision on the vote belonged to the party head and the party, insisting that the court should benefit from the insight of the full court.
Here, Justice Akhtar interjected and asked the lawyer why he kept bringing up the matter of the full court.
At one point, Justice Bandial remarked that the full court court could only be constituted in September. “Should we stop everything until then?”
“We can’t abandon the most important matter of the state. We can’t leave the matters of the Constitution and the public interest hanging [in the middle],” he said.
The chief justice said that every citizen, and even the court, was worried about the economic situation. “Is this state of the economy because of the court or because of instability?”
“Today, the one who took more votes is out and the one who took less is the chief minister. Retaining Hamza Shehbaz would require a solid foundation,” he said.
The chief justice said he wished to dispose off the case quickly and that the court only had two more judges available at the moment.
Salahuddin suggested that judges could hear the cases through video link.
The CJP said the court had mediated even before the CM elections, adding: “we had retained Hamza Shehbaz till by-elections and he played an excellent role during the elections.”
“Now the result of the chief minister’s election should be respected,” he stressed.
Salahuddin said the people were already aware of both the Sharifs’ and Chaudhrys’ governance and “no sky would fall” if either were in power.
However, he said, if the public perception was formed that only a select few judges deal with important political matters then that would “certainly be akin to a sky falling”. He again prayed for the formation of a full bench. At this point, the court took another break.
Earlier in the hearing, the chief justice had remarked that the party head “will also have to listen to the parliamentary party’s opinion”.
There was a flurry of activity even before yesterday’s hearing began as the coalition government reiterated its demand for the formation of a full court bench to hear cases related to hear the case related to the Punjab chief minister’s election.
At the same time, an Islamabad police official said only leaders of respondent parties would be allowed to enter the court premises with the permission of the SC administration.
He added that lists of leaders had been provided by political parties in this regard. “No rally, procession or gathering will be allowed in the Red Zone, including around the Supreme Court.”
After hearing arguments on the constitution of a full bench from the counsels of the deputy speaker, Hamza, PML-Q and PTI, the court adjourned the hearing for 1.5 hours so the judges could deliberate on the matter.
