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Petitioner: Chaudhary Parvez Elahi VS Respondent: Deputy Speaker, Provincial Assembly of Punjab
Court Name: Supreme Court of Pakistan Judge(s): Ijaz-ul-Ahsan, Munib Akhtar, Umar Ata Bandial (C.J) Title:Chaudhary Parvez Elahi vs Deputy Speaker, Provincial Assembly of Punjab,
JUDGMENT
Reported As: PLD 2023 Supreme Court 539 Result: Petition allowed Judgment JUDGMENT UMAR ATA BANDIAL, C.J.--- Surah At-Tawbah, Verse 119: "O ye who believed Fear Allah and be with those who are true (in word and deed)." (Translation by Yusuf Ali) This Constitution Petition No. 22 of 2022 has been filed by Mr. Chaudhary Parvez Elahi ("Petitioner"), the current Speaker of the Punjab Assembly ("PA") and the joint candidate of Pakistan Tehreek-i- Insaf ("PTI") and Pakistan Muslim League (Quaid-e Azam) ("PML-Q") for the office of Chief Minister ("CM") of Punjab. The Petitioner has impugned the ruling given by the Deputy Speaker of the. PA on 22.07.2022 discarding the 10 votes cast by the members of PML-Q in his favour in the election of CM held on the same day. The ruling has been challenged for being contrary to the express provisions of Article 63A(1)(b) of the Constitution and the short order of the Supreme Court ("the Court") passed in Presidential Reference No.1 of 2022 ("Reference 1/2022") on 17.05.2022 which is reported as Supreme Court Bar Association of Pakistan v. Federation of Pakistan (PLD 2022 SC 488). Subsequently, the detailed reasons in Reference, 1/2022 were issued by the Court and these are reported as Supreme Court Bar Association v. Federation of Pakistan (PLD 2023 SC 42). Factual Background 2. To better understand the grievance of the Petitioner, the relevant facts underlying the controversy may first be summarised. The sequence of events leading up to the Deputy Speaker's ruling of 22.07.2022 commenced on or about 01.04.2022 when the resignation of the then CM, Mr. Usman Buzdar, was accepted by Governor, Punjab. Consequently, to elect a new CM for the
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Province an election under Article 130(4) of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") was held in the PA on 16.04.2022. Article 130(4) provides: "130. The Cabinet. (4) The Chief Minister shall be elected by the votes of the majority of the total membership of the Provincial Assembly: Provided that, if no member secures such majority in the first poll, a second poll shall be held between the members who secure the two highest numbers of votes in the first poll and the member who secures a majority of votes of the members present and voting shall be declared to have been elected as Chief Minister: Provided further that, if the number of votes secured by two or more members securing the highest number of votes is equal, further polls shall be held between them until one of them secures a majority of votes of the members present and voting." (emphasis supplied) The election of 16.04.2022 was contested by the Petitioner and respondent No:2,- Mr. Muhammad Hamza Shahbaz Sharif, the candidate ("Respondent candidate") of Pakistan Muslim League- Nawaz ("PML-N"). The strength of the PA is 371, therefore, in terms of Article 130(4) of the Constitution the successful candidate in the first poll needed at least 186 votes to be elected CM, Punjab. 3. After the result of the voting held on 16.04.2022 was tallied, the Respondent candidate was declared CM, Punjab having received 197 votes. However, of these 197 votes 25 votes were cast by the members of PTI, allegedly contrary to the direction issued under Article 63A(1)(b) of the Constitution. As a result, PTI's Party Head, Mr. Imran Khan, forwarded declarations of defection under Article 63A(1) against these 25 members to the Speaker of the PA on 18.04.2022. For reference, Article 63A is produced below: "63A. Disqualification on grounds of defection, etc. (1) If a member of a Parliamentary Party composed of a single political party in a House-- (a) resigns from membership of his political party or joins another Parliamentary Party; or (b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to- (i) election of the Prime Minister or the Chief Minister; or (ii) a vote of confidence or a vote of no-confidence; or (iii) a Money Bill or a Constitution (Amendment) Bill; he may be declared in writing by the Party Head to have defected from the political party, and the Party Head may forward a copy of the declaration to the Presiding Officer, and shall similarly forward a copy thereof to the member concerned: Provided that before making the declaration, the Party Head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him. Explanation.-- "Party Head" means any person, by whatever name called, declared as such by the Party. (2) A member of a House shall be deemed to be a member of a Parliamentary Party if he, having been elected as a candidate or nominee of a political party which constitutes the Parliamentary Party in the House or, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such Parliamentary Party after such election by means of a declaration in writing. (3) Upon receipt of the declaration under clause (1), the Presiding Officer of the House shall within two days refer, and in case he fails to do so it shall be deemed that he has referred, the declaration to the Chief Election Commissioner who shall lay the declaration before the Election Commission
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for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner. (4) Where the Election Commission confirms the declaration, the member referred to clause (1) shall cease to be a member of the House and his seat shall become vacant. (5) Any party aggrieved by the decision of the Election Commission may within thirty days, prefer an appeal to the Supreme Court which shall decide the matter within ninety days from the date of the filing of the appeal. (6) Nothing contained in this Article shall apply to the Chairman or Speaker of a House. (7) For the purpose of this Article,-- (a) "House" means the National Assembly or the Senate in relation to the Federation; and a Provincial Assembly in relation to the Province, as the case may be; (b) "Presiding Officer" means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be. (8) Article 63A substituted as aforesaid shall come into effect from the next general elections to be held after the commencement of the Constitution (Eighteenth Amendment) Act, 2010: Provided that till Article 63A substituted as aforesaid comes into effect the provisions of existing Article 63A shall remain operative." (emphasis supplied) 4. On the following day i.e., 19.04.2022 the Speaker referred these declarations under Article 63A (3) to the Chief Election Commissioner for decision by the Election Commission of Pakistan ("ECP"). During the pendency of the Speaker's references before the ECP, the Court issued its decision in SCBA v. POP (supra) on 17.05.2022 wherein it observed: "3. Turning to the second question and keeping in mind the answer to the first, it is our view that the vote of any member (including a deemed member) of a Parliamentary Party in a House that is cast contrary to any direction issued by the latter-in terms of para (b) of clause (1) of Article 63A cannot be counted and must be disregarded, and this is so regardless of whether the Party Head, subsequent to such vote, proceeds to take, or refrains from taking, action that would result in a declaration of defection. The second question referred to this Court stands answered in the foregoing terms." (emphasis supplied) Thereafter, the ECP on 20.05.2022 announced its decision on the Speaker's references and held that the 25 members of PTI had indeed defected. Consequently, the declarations forwarded by the Party Head against the said members were confirmed and they were de-seated. The operative portion of the ECP's order reads: "34....[W]e have arrived at the conclusion that participation of the respondents in the election of Chief Minister Punjab and casting their votes in favour of the opposing candidate has established the factum of defection on the basis of the subject declarations against all the respondents. The declarations are confirmed and the respondents cease to be members of Punjab Assembly and their seats become vacant." (emphasis supplied) 5. Subsequently, the Petitioner and certain PA Members belonging to PTI ("writ petitioners") filed writ petitions before the Lahore High Court seeking a direction that the decision of the Court in SCBA v. FOP case (supra) dated 17.05.2022 be applied to the CM election held on 16.04.2022 and a fresh election may be ordered in accordance with the Constitution. By its short order issued on 30.06.2022 the Lahore High Court unanimously accepted this contention and by a majority of 4:1 directed that the PA session for electing the CM be resumed on 01.07.2022 and the same 'shall not be prorogued till the election process is complete and the Presiding officer intimates the result of elected Chief Minister to the Governor.'
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6. Dissatisfied by the short time of one day provided by the Lahore High Court for electing a new CM, the writ petitioners approached the Court with the prayer that 'the impugned order dated 30.06.2022 may be amended/modified to the extent of provision of adequate and sufficient time to hold a session of the Punjab Assembly enabling the members to participate in the proceedings.., so that they may exercise their right to vote for the election of the Chief Minister, Punjab.' Specifically, the Petitioner urged before the Court that on 01.07.2022 certain Members of the PA who supported him were out of the country to perform Hajj whilst the 25 seats that stood vacated due to the ECP's decision of 20.05.2022 had not yet been filled. From these 25 seats, 20 were general seats on which bye-elections were scheduled for 17.07.2022. The remaining 5 were reserved seats (3 for women; 2 for minorities) whose new holders had not yet been notified by the ECP. The petition was disposed of by a consent order passed by the Court on the same day i.e., 01.07.2022. Relevant passages from that order are produced below for reference: "10. Based on the unqualified consent of all parties before this Court... the following order is passed which would amend and modify and to that extent override the impugned order of the Lahore High Court dated 30.06.2022: i) The second poll for election of the Chief Minister, Punjab in terms of the proviso to Article 130(4) of the Constitution shall be held on Friday 22.07.2022 at 4:00 pm in the Punjab Assembly Building as suggested by Mr. Ellahi, the Speaker, Punjab Assembly and consented to by Mr. Sharif as well as Mr. Babar Awan, learned ASC representing the Leader of the Opposition in the Punjab Provincial Assembly... iii) The Lahore High Court shall issue its detailed reasons for the order dated 27.05.2022... which shall be implemented by ECP forthwith by issuing the notification of the names of the candidates against reserved seats in accordance with the directions issued by the Lahore High Court... iv) Bye-election (due to be held on 17.07.2022) against the seats which had become vacant on account of defection of members of PTI shall be held in a free, fair and transparent manner..." (emphasis supplied) By 22.07.2022 the result of the bye-elections of 17.07.2022 had been notified and the list of new appointees to the reserved seats had been issued. 7. As per the Court's direction in its order dated 01.07.2022, the PA's session for electing the new CM in terms of the first proviso to Article 130(4) was held on 22.07.2022. This proviso reads: "130. The Cabinet. Provided that, if no member secures such majority in the first poll, a second poll shall be held between the members who secure the two highest numbers of votes in the first poll and the member who secures a majority of votes of the members present and voting shall be declared to have been elected as Chief Minister:" (emphasis supplied) In the second poll a successful candidate merely requires a majority of the votes of the Members present and voting to be elected CM. The picture that emerged from the final 'count on 22.07.2022 was that the Petitioner had secured 186 votes (176 votes from PTI and 10 votes from PML-Q) whereas the Respondent candidate had obtained 179 votes. However, at this stage- the Deputy Speaker, who was presiding the session of the PA, pulled out a paper from his pocket and informed the Members that 'I just received a letter from Ch. Shujaat [Hussain],[1]. He then continued that Mr. Ch. Shujaat Hussain has stated in the letter that being the Party Head of PML-Q he has issued a direction to his party members to vote for the Respondent candidate in the CM election. As a direct result of this letter, the Deputy Speaker rejected the 10 votes cast by the members of PML-Q in favour of the Petitioner. This reduced the votes of the Petitioner to 176 which were 3 short of the total votes received by the Respondent candidate i.e., 179. Consequently, the Deputy Speaker declared
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the Respondent candidate the returned candidate to the office of CM. The ruling of the Deputy Speaker given on 22.07.2022, which is available on the record, is as follows:
Directions to the Members of the Provincial Assembly of the Punjab belonging to Pakistan Muslim League. Dear Sir: Election for the Office of Chief Minister Punjab, scheduled to be held on July 22, 2022. As Party Head of Pakistan Muslim League, I have issued directions to all my Provincial Members named herein below to cast their votes in favour of Muhammad Hamza Shahbaz Sharif viz letter and copies of the same enclosed herewith for ready reference and as proof of directions issued by me as stated] herein above: Hafiz Ammar Yasir, MPA/PP-24 (PML) Shujahat Nawaz, MPA/PP-28 (PML) Mr. Muhammad Abdullah Warraich, MPA/PP-29 (PML) Mr. Parvez Elahi, MPA/PP-30 (PML) Mr. Muhammad Rizwan, MPA/PP-4:1 (PML) Mr Sajid Ahmed Khan, MPA/PP-67 (PML) Mr. Ehsan Ullah Haque, MPA/PP-249 (PML) Mr. Muhammad Afzal, MPA/PP-250 (PML) Ms. Baasma Ch., MPA/W-361 (PML) For the detailed reasons to follow in terms of order of Hon'ble Supreme Court dated 17-05- 2022 passed in Presidential Reference No.1 of 2022 and C.Ps. No.2/2022 and 9/2022 and consequent to the directions issued to the members of the Pakistan Muslim League and received by me from the Head of Pakistan Muslim League, I hereby disregard and exclude the votes of Pakistan Muslim League in fovour of Ch. Parvez Elahi. As [a] consequence Mr Hamza Shehbaz Sharif is declared as the return[ed] candidate for Office of Chief Minister having received majority votes of Members present [and] voting in terms of 1st Proviso of Clause (4) of Article 130 of the Constitution and proviso of sub-rule (3) of Rule 20 of the Rules of Procedure of the Provincial Assembly of Punjab, 1997." 8. Feeling aggrieved by the' ruling of the Deputy Speaker, the Petitioner filed the present Constitution Petition under Article 184(3) of the Constitution on the same day i.e., 22.07.2022 praying, inter alia, for the following reliefs: i. The Deputy Speaker's action of discarding the 10 votes of PML-Q under Article 63A of the Constitution be declared violative of the said Article; ii. The ruling of the Deputy Speaker stating that the Respondent candidate is the returned candidate to the office of CM, Punjab be declared unconstitutional and void; and iii. The Petitioner be declared the lawfully elected candidate to the office of CM, Punjab. It is appropriate to note at this juncture that as per the contents of C.M.A. No.5202/2022, filed by learned counsel for Mr. Ch. Shujaat Hussain and PML-Q, the direction of Mr. Ch. Shujaat Hussain was issued to the members of PML-Q on 21.07.2022. and a letter to this effect was also sent to the Deputy Speaker on the same date Copies of the direction issued by the Parliamentary Leader of PML-Q in the PA on 21.07.2022 to the members of PML-Q are attached in the main paper book of the present Constitution Petition. This direction mandates the members of PML-Q to vote for the Petitioner in the CM election to be held on 22.07.2022. It also refers to a meeting of PML-Q's Parliamentary Party held on 21.07.2022 wherein all 10 members of PML-Q agreed to support the Petitioner in the election of CM, Punjab. Therefore, it appears that on the pivotal date i.e., 22.07.2022 two conflicting directions to the members of PML-Q were holding the field. However, our concern in the present proceedings is with the constitutionality of the direction issued by Mr. Ch. Shujaat
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Hussain under Article 63A(1) (b) of the. Constitution to the PA Members of PML-Q because only that direction is impugned before us. Question in Issue 9. The matter was taken up by the Court for hearing on 23.07.2022. During the course of arguments it became evident that the sole point of contention was whether it is the Party Head or the Parliamentary Party that is empowered to issue a direction to members of the Parliamentary Party under Article 63A(1)(b) of the Constitution in relation to the matters specified therein. Learned counsel for the Petitioner relying on the express wording of Article 63A(1)(b) (reproduced in para 3 above) and the relevant extract of our order in SCBA v. FOP (supra) dated 17.05.2022 (reproduced in para 4 above) submitted that the direction could only be given by the Parliamentary Party. Learned counsel for the respondents sought time to seek instructions and prepare their case. The proceeding was accordingly adjourned to 25.07.2022. Submissions of Counsel 10. On 25.07.2022 apart from the learned counsel for the Petitioner and the respondents, Mr. Farook H. Naek Sr.ASC and Mr. Salahuddin Ahmed, ASC also entered appearances, respectively for the Pakistan People's Party Parliamentarians ("PPPP") and Mr. Ch. Shujaat Hussain and PML-Q. At this hearing the submissions of learned counsel for the respondents and the interveners, PPPP and Mr. Ch. Shujaat Hussain and PML-Q, were focused on the Full Court's 'decision in District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401). The crux of their argument was that the Court in that case had issued an authoritative interpretation of Article 63A(1)(b) of the Constitution, namely, that the Party Head has the power to issue a direction to members of the Parliamentary Party on how to vote in the matters specified in the said provision. According to them, this settled view was stated in paragraph 112 of the opinion of Justice Sheikh Azmat Saeed (as he then was) which was also signed by seven other Judges, including one of us, namely, Umar Ata Bandial, Chief Justice. Paragraph 112 reads: 112. Through the 18th Constitutional Amendment, Article 63A has only been amended to the extent that the decision of the party as how to vote has been conferred upon the Party Head and the matters in which such instructions will apply now includes an Amendment to the Constitution in addition to Money Bill and vote of confidence or no confidence. Such changes do not [a]ffect in substance the import and effect of the Provision with regard to the mischief sought to be suppressed as already held to be valid by this Court." (emphasis supplied) 11. Learned counsel submitted that in light of the afore-noted dictum the direction by Mr. Ch. Shujaat Hussain to the members of PML-Q was issued in accordance with the Constitution. To reinforce this contention, they also relied on the Court's decisions in Sardar Sher Bahadar Khan v. Election Commission of Pakistan (PLD 2018 SC 97) and Zulafiqar Ahmed Bhutta v. Federation of Pakistan (PLD 2018 SC 370). Nevertheless, learned counsel acknowledged that the opinion of the Court in the SCBA v. FOP case (supra), delivered by a five Member Bench, has diverged from the view enunciated in the District Bar Association case (supra) thereby creating doubt regarding the competent source of the direction under Article 63A(1)(b). Therefore, to resolve this doubt and to adjudicate the legal validity of the decision issued in the SCBA v. FOP case (supra), it was necessary that a Full Court hear the present matter. 12. In response, learned counsel for the Petitioner argued that the view expressed by Justice Sheikh Azmat Saeed in paragraph 112 of his opinion was not the ratio decidendi of the District Bar Association case (supra). This is because the Full Court in that case was examining the vices of the 18th and 21st Amendments to the Constitution and had no concern with the question: 'Who is the competent authority under Article 63A(1)(b) to issue directions to members of the Parliamentary Party?' Secondly, learned counsel submitted that the District Bar Association case (supra) was
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heard by a Full Court of seventeen Judges. For any view expressed therein to take effect as a binding precedent required that such view be agreed to by a majority of at least nine Judges. However, this was not the case in District Bar Association (supra) because Justice Sheikh Azmat Saeed's view was not shared by the majority, i.e. nine Judges. Therefore, his lordship's view was a plurality opinion and not a majority judgment of the Court. He lastly stated that reliance by the respondents and the interveners on Sardar Sher Bahadar Khan (supra) and Zulfiqar Ahmed Bhutta (supra) was misplaced because these cases do not declare that the power to issue a direction lies with the Party Head. Consequently, he submitted that the SCBA v. FOP case (supra) had correctly laid down the constitutional rule on the subject and there was neither a need for the Full Court to hear the present petition nor did the respondents and the interveners have any case on the merits. Short Order Dated 25.07.2022 13. After hearing all the learned counsel at length, the Court vide short order dated 25.07.2022 ("Full Court Short Order") dismissed the respondents and the interveners request for referring the matter to the Full Court and adjourned the case to the next day for a further hearing on the merits: "ORDER We have heard detailed submissions made by the learned counsel for the petitioner on merits. In response, the learned counsel for the respondents/the interveners have made elaborate submissions in support of their plea that this matter be referred to the Full Court. During the course of such submissions, which extended over several hours, they have also made submissions or merits of the case and have primarily relied upon the judgments of this Court reported as District Bar Association v. Federation of Pakistan PLD 2015 SC 401, Sardar Sher Bahadar Khan v. Election Commission of Pakistan PLD 2018 SC 97 and Zulfiqar Ahmad Bhutta v. Federation of Pakistan PLD 2018 SC 370. 2. The essence of the matter is a question of law i.e. whether in terms of Article 63A(1)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 the Party Head can issue a direction to the Members of the Parliamentary Party to cast their votes in a particular manner or is it the Parliamentary Party which has been given the mandate in terms of a plain reading of the said Article of the Constitution to issue such declaration, as held in' our short judgment dated 17.5.2022, rendered in Presidential Reference No.1/2022 and Constitution Petitions Nos.2 and 9/2022 reported as Supreme Court Bar Association of Pakistan v. Federation of Pakistan PLD 2022 SC 488. The deputy Speaker, Punjab Assembly has answered this question in favour of the Party Head by his Ruling dated 22.7.2022 but the learned counsel for the petitioner has submitted that this is a clear error of law which misunderstands and misapplies the afore-noted short judgment of this Court. The learned counsel for the respondents and the learned counsel for PPP(P), as well as the learned counsel for Ch. Shujaat Hussain, the Party Head of PML(Q) as also the said political party have made detailed submissions in support of the afore-said Ruling of the Deputy Speaker. 3. Having considered the matter, for detailed reasons to follow the request for referring the matter to the Full Court is declined. Although elaborate submissions have been made on merits of the case as noted above, in view of the specific requests made by the learned counsel for the respondents/interveners for further time and seeking further instructions, we adjourn the matter for tomorrow i.e. 26.7.2022 at 11:30 am to give the learned counsel for the respondents further opportunity to add to their submissions on the merits, if deemed appropriate by them." Hearing of 26.07.2022 14. When the hearing commenced the next day on 26.07.2022, learned counsel for the respondents and the interveners informed the Court that on instructions from…
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