Lawyers split on SC ruling

KARACHI: After the Supreme Court verdict declaring Punjab Assembly Deputy Speaker Dost Muhammad Mazari’s ruling in the Punjab chief minister’s election “illegal” and announcing Chaudhry Pervaiz Elahi as the new CM of the province, constitutional experts and lawyers weighed in on the decision.

Senior lawyer and counsel for Pervaiz Elahi in the case, Barrister Ali Zafar, called the SC verdict a “landmark judgment that will change the course of our political history and journey.”

“I am happy that the judges were tolerant and accepted the bullying tactics by certain quarters with grace. The issue before the court was not even a matter of interpretation of the Constitution but rather a matter of understanding Article 63A and the earlier judgments of the SC related to the question. The court rightly came to the conclusion that for Article 63A 1(b) to apply, the directions as regards in an election of a CM have to be given by the parliamentary party and not the party head. In this case, the parliamentary party PMLQ consisted of ten members and the parliamentary party unanimously had decided to vote for Elahi. 

The deputy speaker refused to accept their votes on the grounds that the party head had told him not to do so. The SC has decided that the deputy speaker’s decision was contrary to 63A of the Constitution because the direction of the party head does not constitute a defection under 63A. This was a case in which the SC heard the arguments for three days from all sides and despite the parties’ advocates not appearing on the last date, the court examined their written arguments and replies and then heard the AG’s office which represents the government. So a fair hearing was given.”

Advocate Mansoor Awan, counsel for Hamza Shehbaz in the case in the Supreme Court, disagrees and says: “I think this short order and the consequent reasoning that will be given will only lead to more uncertainty and instability. And I think what the court has not taken into account is the fact that the parliamentary party and the party head had to be read together in a manner that they did not trample upon the rights of a political party under Article 17. The brief submission I had given was that the political party is at the top of the party and the parliamentary party is below the political party. Imagine a situation in which the majority of the parliamentary party goes against the political party, the mother party, then that would not be defection right. In fact, the minority that follows the mother party’s policy would become bound by the majority then, so the head of a party can’t give a declaration in such a case. This way the political parties stand weakened. In this case, there were three issues. The original Article 63A opinion of the SC in May, then the April 16 decision by the ECP and the current case (Mazari’s ruling). If the PTI chairman’s letter was right, then this letter (by the PMLQ head) should also be right. So which one is it? This had to be reconciled. As regards Article 63A, we wanted collective wisdom (through a full bench) so that no one would have been able to raise any question and the matter was settled once and for all.”

On the question of whether Chaudhry Shujaat will go to the ECP and ask for the PMLQ members to be declared as defectors, Mansoor Awan says that if so advised, he could go. “There is a precedent. The PTI chairman’s letter was made the basis for their peoples’ defection, so relying on that decision by the ECP, Chaudhry Shujaat could perhaps give a declaration, and the ECP will have to see how they reconcile the two decisions...how can they not apply the same decision that they had in the PTI’s case to the PML-Q”. However, Barrister Ali Zafar says that there is no question of Chaudhry Shujaat going to the ECP and getting the PMLQ members declared as defectors “since the court has held that 63A does not apply to this case because the parliamentary head (of the PMLQ) had given clear instructions to the party members (which they then followed)”.

Advocate of the Supreme Court Salman Akram Raja feels that the verdict is “the correct interpretation of Article 63A.” He does say, however, that “the earlier interpretation in the presidential reference that votes of defectors would not count will remain controversial. On the matter of the 25 de-seated members of the PTI, Salman Raja says that he “does not see those 25 being restored and their votes being restored, which would then take us back to April 16 and Hamza would stand elected again”.

For Salman Raja, the issue of the interpretation of Article 63A remains “the most controversial part in all this. There is a review against that but it goes to the same bench that had decided already. Two judges have dissented but the majority detailed judgment hasn’t been issued; and there is very little chance of that being changed”.

Supreme Court lawyer Faisal Chaudhry says, “The entire strategy was flawed and could never sustain legally. Because if this had been allowed, it would open the gates to convert the majority into a minority and the fundamental norms of democracy would be defeated, A similar exercise by the National Assembly deputy speaker was also defeated by the same bench. This was never a legal issue; the PDM side was well aware that it could not be sustained legally, so their whole strategy was to provoke the judges and ask for a full bench without even giving a legal reasoning for it. They had no constitutional, legal or democratic logic, which is why they failed to respond to the court’s queries and decided to boycott. In fact, there is no provision for a boycott of court proceedings under law. It was the silliest strategy to take on the judges.”

On Article 63A, Faisal Chaudhry is of the opinion that the Article is very clear and that “a plain reading of (Article 63A) clearly says that in an election of the CM, the direction has to be passed by the parliamentary head and not party head. This was a constitutional misadventure by the deputy speaker in a complete misreading of the law”.

Lawyer Salaar Khan says: “I think there are two ways to look at the judgment: one is the outcome and one how we arrive at the outcome. In terms of the outcome, this seems to be the interpretation of the text of the Constitution without introducing anything unnecessary into the cauldron. It’s also consistent with the balance the Constitution seems to strike between Article 63A, which was introduced to prevent horse-trading and floor-crossing on the one hand, and then also affording a certain degree of freedom to parliamentarians to vote according to their individual conscience. With regard to how we arrive at this judgment, that’s another question. A lot of it is not black and white. Demands were made, for example, for a full bench. One aspect of it was not having faith in the three-member bench; the other aspect was this idea that if a binding precedent or something that seems to be a binding precedent, even then propriety dictates that a larger bench review that judgment. In terms of how we arrived there, there’s much that is left to be desired. Even though the full bench demand wasn’t a legal requirement, propriety dictated that in questions like this -- and it was a question of whether what Mazari did was lawful or unlawful, not just whether he understood the law. So we got here because of the Supreme Court and we got out of it because of the Supreme Court but what were left with words in the Constitution that were not there to begin with.”