Lahore June 30 2022: In a verdict announced by Lahore High Court Mr. Usman Ahmed Khan Buzdar, is restored to the office of Chief Minister of the Punjab with immediate effect, however orders to hold elections for the position of Chief Minister tomorrow.
As per four judges bench the Presiding Officer (Deputy Speaker) of the election held on 16th April 2022 is, therefore, directed to recount votes after excluding 25 votes of the defecting members. As a consequence, if required majority, under Article 130(4), is not secured by any candidate, he shall proceed for second and further polls under its provisos for completing the process of election as required under Article 130(4), unless a candidate is elected by majority votes.
The session, for this purpose, as originally called by the then Governor shall be resumed on 1 st July 2022 (Friday) at 4:00 pm without fail.
Four panel judges bench noted that, “It is an undeniable fact that 25 members of Pakistan Tehreek-e-Insaaf had voted for Mr. Muhammad Hamza Shahbaz, whereas the party had nominated Mr. Pervaiz Ellahi as its candidate. Respondent’s contention that the members have not defected in absence of a direction in terms of Article 63A (1)(b) has no force. The emphasised part of the order, ibid, discloses the intent behind the decision that possibility of defection from the Party line, policy or direction is to be curbed, at the time of poll by the Presiding Officer, regardless of declaration or action by Party Head. It is understood that presence in the House, enlistment on voter list and casting of vote is not prohibited, however the vote so cast, is held not countable.”
The decision added, “The contention of quashing the Notification No. SO (CAB-II)2-12/2018(VOL-I) dated 30.04.2022, besides direction for second poll under proviso to Article 130(4) has not impressed us. 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. We cannot quash the Notification and ask the Presiding Officer to proceed under provisos to Article 130(4), when one of petitioner’s counsel (Mr. Amir Rawn, Advocate) has pleaded that practically 195 votes were casted and the respondent’s contention is that casted votes are 197. Even otherwise, after declaring that 25 votes could not be counted, we cannot assume the role of the Presiding Officer, under Article 130(4), to determine majority of countable casted votes. The Presiding Officer (Deputy Speaker) of the election held on 16th April 2022 is, therefore, directed to recount votes after excluding 25 votes of the defecting members. As a consequence, if required majority, under Article 130(4), is not secured by any candidate, he shall proceed for second and further polls under its provisos for completing the process of election as required under Article 130(4), unless a candidate is elected by majority votes.”
The decision can be further stated that, “Though on recounting as directed, the consequential procedure and effect shall be in accordance with the Constitution and Rules made thereunder, nevertheless, for clarity it is explained that Hamza Shahbaz shall cease to be Chief Minister, if he loses the required majority after exclusion of 25 votes by Presiding Officer and the communication of his being elected candidate under Rule 21 along with Notification dated 30.04.2022 shall deem to have been quashed. In this eventuality, functions performed and powers exercised, by Hamza Shahbaz as Chief Minister and his cabinet, in accordance with law, shall be protected under the de facto doctrine.”
The session, for this purpose, as originally called by the then Governor shall be resumed on 1st July 2022 (Friday) at 4:00 pm without fail. All the functionaries under the Constitution or law, within their respective share of powers, shall act jointly and severally to implement the directions by this Court. The session so resumed shall not be prorogued till the election process is completed and Presiding officer intimates the result of elected Chief Minister to the Governor under the Rule 21. The Governor shall preform his duty, under Article 130(5), of administering oath without any hesitation and by ignoring any apprehension regarding conduct election, at any time before 11:00 am very next day.
We cannot ignore the disorder in various sessions of the Provincial Assembly, therefore are constrained to observe and direct 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.
According to the decision, “the Constitutional petitions are allowed in the manner that impugned letter dated 16.04.2022, addressed to Governor of the Punjab by Deputy Speaker, pronouncing respondent-Muhammad Hamza Shahbaz Sharif as successful member elected for the office of Chief Minister, and Notifications dated 30.04.2022, regarding administration of oath by respondent Muhammad Hamza Shahbaz Sharif as Chief Minister and cessation of Mr. Usman Ahmed Khan Buzdar to hold the office of Chief Minister are set aside being illegal and without lawful authority. Consequently, Mr. Usman Ahmed Khan Buzdar, is restored to the office of Chief Minister of the Punjab with immediate effect, as he was on said date.”
The statement added, “In the interest of the administration of the Province and its people, I put forth to invoke the de facto doctrine and declare that all acts / actions, otherwise legal and valid, executed between 30.04.2022 and today by the respondent-Muhammad Hamza Shahbaz Sharif as Chief Minister of the Punjab and his Cabinet, shall not be adversely affected by reason only of this order and proposed reasons.”
