LAHORE: A counsel for Chief Minister Hamza Shahbaz on Monday argued before the Lahore High Court (LHC) that the Supreme Court’s opinion on the votes of defectors would not have a retrospective effect.

Advocate Khalid Ishaq, the counsel for the CM, stated that the election of his client had already been held when the apex court gave its opinion on a presidential reference seeking interpretation of Article 63-A of the Constitution, which deals with defection by parliamentarians.

He also filed a written reply on behalf of Hamza Sharif to the petitions filed by the Pakistan Tehreek-i-Insaf (PTI) and Pakistan Muslim League-Quaid challenging his election.

The counsel for CM and Additional Advocate General (AAG) Jawwad Yaqoob submitted receipts of fine deposited in the dispensary of the bar. The law officer requested the court not to make the fine a part of the case record, which the court allowed.

On the previous hearing, Chief Justice Muhammad Ameer Bhatti had imposed a fine of Rs100,000 each on the government and the chief minister for not submitting replies to the petitions.

Opposing the petitions, Advocate Ishaq argued that the election of the chief minister and the subsequent oath-taking ceremony were held on the directions of the court. He said the election in question was held prior to the SC opinion on Article 63-A and it was a settled law that any interpretation of the law by the superior courts would not apply retrospectively unless expressly stated otherwise. He said the presidential reference was related to a vote of no-confidence in the election of the prime minister.

Barrister Syed Ali Zafar, on behalf of the PML-Q, argued that when courts interpreted any law it was in fact a decision of what the law was and had been since the day the law came into being. Referring to a number of judgements, he said when a court interprets a law that interpretation applied retrospectively and prospectively to all pending and future cases and it was only the cases which attained finality through a judgement of a court or other legal proceedings that could not be opened.

The chief justice asked Barrister Zafar whether the decision of the SC applied to the events which took place before its issuance. He replied that Article 63-A existed and was a part of the Constitution as on April 16, 2022 and it was accordingly to be applied to the events in full force and effect as interpreted by the Supreme Court. He further said that the SC judgement had a binding effect as laid down in the earlier judgements. Therefore, he submitted, the question of retrospection was irrelevant because the SC judgement was to be used as a precedent to be applied to the facts of this case.

Mr Zafar argued that the petition in hand was ‘quo warranto’ as Hamza had not obtained the votes of the majority of the total membership of the assembly and the question of the application of the apex court’s opinion did not arise in this situation.

Before putting off the hearing till Tuesday (today), Chief Justice Bhatti observed that the Constitution did provide punishment for the defectors but not for those getting votes of the defectors.

Published in Dawn, May 31st, 2022