The counsel representing Punjab Assembly Deputy Speaker Dost Mazari, Irfan Qadir, and the counsel of Pakistan Peoples Party (PPP), Farooq H Naek, on Tuesday boycotted SC proceedings as the apex court resumed hearing petitions related to the recently held election for the coveted post of Punjab chief minister.
The proceedings began at 11:30 am with a three-member bench headed by Chief Justice Umar Ata Bandial presiding over the hearing.
Punjab Assembly Deputy Speaker Dost Mazari’s counsel, Irfan Qadir, came on the rostrum where he stated that he was told to not be a part of the proceedings.
“I will not be a part of further proceedings”, he maintained.
Qadir stated that he would file a revision against the order rejecting the petition requesting the formation of a full five-member bench, to which the chief justice replied that the court had decided that there was no need for a full court to hear the case.
“Arguments were made in the court regarding the compliance of the party leader’s instructions,” the Chief Justice of Pakistan said, adding that the lawyers for the parties were told that the Constitution did not allow for obstruction of governance.
Justice Bandial maintained that the request for the formation of the full court was nothing more than delaying the case and apex court judges were not available before the second week of September.
He further maintained that he would prefer to complete the case soon for the sake of governance and crisis resolution.
“Bringing the case before the complete bench is tantamount to subjecting the case to unnecessary adjournment”, the CJ said, reiterating that the matter would have been delayed to September as members of the court were on vacation.
PPP's counsel Farooq Naek also appeared on the rostrum and stated that his party would also not appear in court.
The chief justice, however, told Naek that he had done well in assisting the court on Monday and permitted him to take his seat. Justice Bandial added that the PPP was not made a party in the case.
There was no issue of parliamentary party instructions in the Article 63A case, the chief justice said, adding that assistance would be required on legal points.
Referring to Awan’s argument from Monday that according to the verdict of former SC judge Sheikh Azmat Saeed's eight-member bench, all the decisions were taken by the party leader, the CJ stated the decision of eight judges related to Article 63A was not a majority.
He asserted that the case in which the eight judges gave the decision was a 17-member bench and if the decision was made by nine members, only then would it be declared a majority.
Justice Bandial questioned if the Supreme Court could be bound by the opinion of eight out of 17 judges and directed Barrister Ali Zafar to assist the court on legal questions.
The CJ added that another way for the hearing to proceed was for the three judges to separate from the bench.
He also urged boycotters of the hearing and the court – the incumbent coalition government – to show some “grace” and listen to the court proceedings.
Barrister Ali Zafar stated that petitions against the 21st Amendment were dismissed by a ratio of 13/4 and that in the 21st Amendment case, Justice Jawad Khawaja had declared Article 63A unconstitutional.
Pervaiz Elahi’s counsel said that the reasons for dismissing the petitions were written separately by several judges, he added that Justice Khawaja was of the opinion that Article 63A prevents members from voting freely.
Justice Jawad Khawaja did not state the reasons for his opinion in the judgment, Ali Zafar said.
Elahi's lawyer maintained that he disagreed with Justice Khawaja's opinion. “What does the Constitution say regarding whose instructions to vote on”, the chief justice asked Ali Zafar to which the barrister stated that according to the Constitution, the voting instructions were given by the parliamentary party.
“Is the parliamentary party separate from the party leader?” the CJ asked.
Elahi’s lawyer responded that a parliamentary party and a party leader were two different things. “According to the Constitution, the party chief implements the decision of the parliamentary party”, Justice Ijazul Ahsan said.
Chief Justice Bandial further stated that the parliamentary party does not take any decision on its own, adding that the decision of the political party is communicated to the parliamentary party in light of what it decides.
Justice Muneeb Akhtar questioned what the definition of a party leader was and if the party chief was only the head of the political party.
Justice Ahsan then questioned where the word parliamentary leader was used, to which Barrister Ali Zafar said that in 2002, the Political Parties Act mentioned the parliamentary party.
The word parliamentary leader instead of the parliamentary party was a mistake, Justice Ijazul Ahsan maintained.
In the 18th and 21st Amendment cases, only the provisions of Article 63 were looked at, Justice Ijazul Ahsan said.
“Regarding Article 63A, the case of the party leader was not observed in detail in the past”, he added.
A judge repeatedly changing his opinion is not a good example, Chief Justice Bandial said. “There should be uniformity in the judge's opinion. I change my opinion only when there is a good reason," the CJ stated.
Additional Attorney General Aamir Rehman then came to the rostrum to make a “few submissions” before the court. Justice Akhtar questioned if the federal government had separated from the decision of the ruling coalition?
“I will assist the court under Article 27(A)”, Rehman said. Let there be no mistake in judgment, the chief justice said, adding that everyone was welcome to support the court.
Political bigwigs including PTI’s Babar Awan, Fawad Chaudhry, Shibli Faraz, Azam Swati and Faisal Javed; PML-Q’s Moonis Elahi and PPP’s Farooq H Naek reached the apex court earlier for the hearing.
Earlier, the apex court had rejected the coalition government’s request for the formation of a full court to hear Elahi's petition against the provincial chief minister's election.
A three-member bench, headed by Chief Justice of Pakistan Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar, heard the petition filed by Elahi, who is also a candidate for the CM's office, against the ruling of Punjab Assembly Deputy Speaker Dost Muhammad Mazari over the fate of PML-Q votes in the Punjab CM's election.
Mazari, in his ruling, had rejected 10 votes of the Pakistan Muslim League-Quaid's (PML-Q) members relying upon the Supreme Court's verdict that votes of those lawmakers, who defied the party leadership's instructions, would not be counted.