The Lahore High Court (LHC) on Thursday ordered re-counting of votes for the election of Punjab's chief minister held on April 16, instructing that the votes of 25 dissident PTI lawmakers be excluded from the counting process.

A five-member bench comprising Justice Sadaqat Ali Khan, Justice Shahid Jamil Khan, Justice Shehram Sarwar Chaudhry, Justice 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 Hamza 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 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 (tomorrow) at 4pm. 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 preform his duty, under Article 130(5), of administering oath without any hesitation, at any time before 11am the very next day, it directed.

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".

Hamza 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.

PTI to approach SC against verdict

Later in the day, PTI Chairman Imran Khan said the party would approach the SC against the LHC's ruling. He questioned how Hamza could remain CM when the high court had ordered a recount.

PTI leader Fawad Chaudhry was of the opinion that the LHC's decision had further aggravated the political crisis in the province. "Hamza's government has not survived but the solution given will not end the constitutional crisis," he observed, adding that the verdict had "many flaws".

"We are calling a meeting of [our] legal committee," he said, also adding that the party would approach the SC against the "flaws" in the LHC's verdict.

PML-N leader Attaullah Tarar, on the other hand, said that the PTI was unable to understand and interpret the verdict.

Speaking to the media in Lahore, he maintained that the LHC had not annulled the Punjab CM election and had also not directed to hold fresh elections.

He went on to say that even if a run-off election took place, Hamza would still come out on top. According to Tarar, the PML-N had the support of 177 lawmakers after five of their rebel MPAs had returned back to the party while the PTI-PML-Q alliance had 168.

"We have a majority at the moment and we are confident that we will win a run-off election," he said.

Dissenting note

In his dissenting note, Justice 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.

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.

The petitions

In his petition, 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."