ISLAMABAD: Former chief minister Punjab Hamza Shahbaz Friday challenged the Supreme Court (SC) verdict declaring Chaudhry Pervaiz Elahi as the duly-elected chief executive of the country’s biggest province.
Hamza filed a review petition in the SC through his counsel Mansoor Awan under Article 188 of the Constitution against the order of the apex court, passed on July 26, 2022. He prayed to the apex court to constitute a full court, comprising at least 12 judges, for deciding the matter involving interpretation of Article 63-A of the Constitution as well as other connected matters.
He contended that the court, in its order, did not appreciate that 11 judges of the SC, and not eight, enunciated in District Bar Association, Rawalpindi, vs. Federation of Pakistan, PLD 2015 Supreme Court 401, that non-compliance with directions of the party head with respect to casting votes on subject-matters listed in Article 63-A(1)(b)(i)-63A(1)(b)(iii) makes the member of a parliamentary party subject to de-seating.
“In the order, the court held that as to the question of whether the party head can give any direction as contemplated by Article 63A(1)(b) of the Constitution of Islamic Republic of Pakistan, 1973, District Bar Association, Rawalpindi v. Federation of Pakistan, PLD 2015 Supreme Court 401, is not binding,” says the review petition.
It submitted that the court reasoned that out of 17 judges, who sat in judgment over, among other issues, the constitutionality of the Constitution (18th Amendment) Act, 2010 and specifically Article 63A, only eight held in paragraphs 112 that the “decision of the party as to how to vote has been conferred upon the party head.”
In the order, it is mentioned that the “counsel for the petitioner has taken us through each of the judgments to submit that none of those other judges have dealt with this particular point” due to which “on this point the judgment being relied upon does not constitute binding precedent. With due respect, this is incorrect,” said the review petition.
Hamza submitted that there were 11 judges in District Bar Association, all of whom have indicated that the direction being referred to in Article 63A(1)(b) of the Constitution, is to be issued by the party head, at the behest of or on behalf of the political party to the parliamentary party.
The petitioner submitted that the court erred in holding that observations made in District Bar Association with respect to 63A 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”, since this court in District Bar Association, did actually and substantially engage with the question of whether the language of 63A of the Constitution, after the 18th Amendment, was constitutional or not.
Hamza Shehbaz submitted that the order erred in holding that the short order in Presidential Reference No1 of 2022 rendered on 17-5-2022 was incorrectly and erroneously applied in the Deputy Speaker’s ruling dated 22-7-2022, as the short order in Presidential Reference No1 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.
The court failed to appreciate that when a justice signs onto a judgment, then to the extent that judgment is not expressly controverted in the separate opinion, that justice remains bound by the judgment he has put a signature to, whereas the order makes the inverse and counter-intuitive inference that because other aspects were covered in the separately rendered decision, therefore the opinion on which the signature is affixed, was not of much import”, says the review petition.
He submitted that the apex court, in the Presidential Reference, erroneously extended the fundamental right of a political party under Article 17(2) to Article 63A, by holding that the votes counted in violation of political party’s policy shall be disregarded and not counted.
“The aforesaid ruling in Presidential Reference No1, under review before this court, has been applied to the instant matter for the purposes of disregarding the votes polled in favour of the petitioner in the elections held on 16-4-2022”, says the review petition.
“The reference to the opinion in Presidential Reference No1, for the purposes of this instant petition, may kindly be taken and understood in the present context and submissions made herein are specifically in the context of the application of the aforesaid opinion on the ruling of the deputy speaker dated 22-7-2022,” the petitioner submitted.
He prayed that a review petition against the order in Presidential Reference No. 1 is already pending before this court and as such, whatever has been submitted in relation to the aforesaid order is without prejudice to the pending review petition.
