Five-member larger bench of LHC orders re-counting of votes for Punjab CM election excluding 25 PTI dissidents
LAHORE, June 30 (SABAH): The Lahore High Court (LHC) on Thursday ordered re-counting of votes for the election of Punjab Chief Minister Muhammad Hamza Shehbaz Sharif held on April 16, instructing that the votes of 25 dissident PTI lawmakers be excluded from the counting process. The court has directed Deputy Speaker Punjab Assembly Mir Dost Muhammad Mazari to hold recounting and run of election today (Friday) at 4:00 PM. The court has directed that the assembly session will not be adjourned till the completion of the election process of the chief minister Punjab.
A five-member larger bench of the LHC headed by Justice Sadaqat Ali Khan and comprising Justice Shahid Jamil Khan, Justice Shehram Sarwar Chaudhry, Justice Muhammad Sajid Mahmood Sethi and Justice Tariq Saleem Sheikh announced the verdict with a 4-1 majority.
In a short order issued after the hearing, the LHC instructed that votes in the election held on April 16 be recounted after excluding 25 votes of the defecting lawmakers. If the required majority for Hamza — which is 186 votes in the 371-member strong house — to stay the CM is not secured, the election will be held again under Article 130(4), unless another candidate has majority votes.
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.
The court said that Muhammad Hamza Shehbaz Sharif will cease to be the chief minister if he loses the required majority after the exclusion of 25 votes by the presiding officer. However, it pointed out, functions performed and powers exercised by Hamza Shehbaz will be “protected under the de facto doctrine” in accordance with the law.
For the recounting of votes and re-election, if required, a PA session will be held on July 1 (today) at 4:00 PM. The LHC stressed that the session cannot be prorogued until the election process was completed and the presiding officer “intimated the result of the elected chief minister to the governor”.
The governor shall perform his duty, under Article 130(5), of administering oath without any hesitation, at any time before 11:00 AM the very next day, it directed.
“We could, possibly direct fresh election after declaring the election as unlawful but it would nullify the direction by apex court to the state functionaries for conduct of election in accordance with the Constitution and the decision by learned Division Bench of this Court, appointing Deputy Speaker as presiding officer and directing for conduct of election on 16th April 2022,” the verdict stated.
It further said that the court cannot quash the notification issued by the presiding officer as well.
The court added that “any attempt of disorder from any quarter shall be taken as contempt of court and shall be proceeded accordingly by this larger bench on formal information by any person”.
The verdict obliged Punjab governor to ensure that the PA session, summoned by him at 4pm on July 1, is held without fail, and not adjourn it without holding the poll.
In addition to this, the governor must ensure administering an to the new CM on July 2, by 11am.
In his dissenting note, Justice Muhammad Sajid Mahmood Sethi said that the votes of the 25 PTI dissidents cast in favour of Hamza were “admitted”, therefore, there was no need to repeat the exercise of counting/recounting.
The judge noted that in the 371-strong PA, the requisite number needed to become chief minister was 186 votes. He went on to say that from the record, Hamza obtained 197 votes.
“Therefore, the stance of Advocate Amir Rawn that actually 195 votes were cast in favour of respondent does not restrict this bench to order for second poll as per the aforesaid provision of the Constitution so as to implement the judgment of the honourable apex court straightaway, especially when petitions to the extent of challenging election as a whole stand dismissed by this bench.”
Justice Sethi also said that after excluding the 25 votes, Hamza had 172 votes. “Therefore, he is not member elected within the contemplation of Article 130(4) of the Constitution and being a stranger to the office of chief minister, cannot be allowed to hold the office,” he said.
He went on to say that it would give political advantage to the respondent over the other contesting candidate. “This, the office of a non-elected member cannot be protected which even otherwise appear[s] to be against the mandate of Article133 of the Constitution,” he said.
Justice Sethi said that in view of the above, the constitutional petitions were allowed. “Consequently, Usman Ahmed Khan Buzdar, is restored to the office of Chief Minister of the Punjab with immediate effect, as he was on said date,” he said.
Hamza Shehbaz was elected as the Punjab CM on April 16 during a provincial assembly session that was marred by violence. He received a total of 197 votes — 11 more than the required 186 — including from 25 dissident PTI MPAs that were crucial for his victory. On May 20, those lawmakers were de-seated by the ECP for defecting.
After the LHC’s order of excluding the votes of 25 defecting members, Hamza’s tally has now been trimmed to 172 votes, which no longer holds the strength of the house. Therefore, as per the court’s order, a re-election is bound to be held.
In his petition, Speaker Punjab Assembly Chaudhry Parvez Elahi, who was also the PTI-PML-Q’s candidate for the CM Office, requested the court to declare that Hamza was not the chief minister since he had failed to secure the requisite number of votes in light of the SC’s interpretation stating the votes of defecting lawmakers would not be counted.
Therefore, the April 16 election, its results and the certificate issued by the Punjab Assembly deputy speaker to Hamza declaring his victory had “no legal effect”, the petition stated.
The petition requested the high court to declare “all consequential actions taken by [Hamza] in his purported capacity as the chief minister Punjab and all and any other communications made, orders passed and notifications issued etc., consequential upon the declaration of the afore-mentioned result and issuing the set certificate … to be null and void”.
Separately, PTI’s petition, which was filed by MPAs Mohammad Sibtain Khan, Zainab Umair, Mian Mohammad Aslam Iqbal, Syed Abbas Ali Shah and Ahsan Saleem Baryar, stated that the session held for conducting the election witnessed “immense chaos and most unfortunate events”.
Deputy Speaker Mazari took “unlawful” aid from the police and provincial officials for holding a “sham and fraudulent” election, following which he communicated that Hamza had won, the petition said.
It noted that votes of 25 dissident PTI MPAs were also counted in the final tally for Hamza. While the then governor Cheema had refused to accept the election results, Hamza was administered the oath due to “judicial overreach”, it contended.
“As per the investigation conducted by the [then] honourable governor of Punjab, the respondent secretary of the provincial assembly has tendered a report detailing the various dimensions of the election held on 16.04.2022 and has categorically informed the [then] honourable governor that the referred elections were/are unlawful; thus consequently the certificate issued by the respondent deputy speaker/acting speaker was/is without any lawful sanction/legal authority,” the petition reads.
According to the petition, Hamza’s election was in violation of the Constitution and the Rules of Business of the Punjab Assembly. It recalled that Hamza had approached the LHC for holding the election, adding that he treated it as an urgent matter because he had the support of 25 dissident PTI MPAs, which was a violation of Article 63 of the Constitution.
An analysis of the Supreme Court’s interpretation would lead to the conclusion that the chief minister’s election was unlawful, it stated.
“On this ground alone and keeping in view the scope and intent behind Article 63-A of the Constitution, the election held on 16.04.2022 [should] be declared as being without lawful authority and consequently be struck down.”
At present, the ruling alliance enjoys the support of 176 MPAs, including 164 of the PMLN, four independents, one Rah-e-Haq Party and seven of the PPP.
On the other hand, the PTI has 158 MPAs in the Punjab Assembly after 25 of its MPAs were de-seated. In addition, it also enjoys the support of 10 PMLQ MPAs. In total, the opposition alliance enjoys the support of 168 parliamentarians.
However, the PTI’s strength will reach 163 when the reserved members are notified taking the number of opposition’s lawmakers to 173.
Hamza was elected 21st Chief Minister of the Punjab by grabbing 197 votes on April 16 by bagging 197 votes in total while his opponent Pakistan Muslim League-Quaid leader Parvez Elahi, did not get any vote, as lawmakers from both ruling parties boycotted the session.
However, his oath-taking was delayed after than Governor Punjab Omar Sarfaraz Cheema refused to administer the oath.
However, after a long, drawn-out legal and political battle, Hamza Shahbaz was sworn-in by National Assembly Speaker Raja Pervaiz Ashraf on April 30, in accordance with the Lahore High Court’s order.