Pakistan

LHC advises CJ to form larger bench on PTI plea against Hamza’s oath-taking


The Pakistan Tehreek-e-Insaf (PTI) challenged on Saturday the Lahore High Court (LHC) single bench’s decision directing the National Assembly speaker to administer oath to Punjab chief minister-elect Hamza Shehbaz Sharif.

The party deemed the decision "beyond the facts of the case" and a "violation of several articles of the Constitution".

Later, LHC's division bench referred the appeal to Chief Justice Muhammad Ameer Bhatti with recommendation to form a larger bench comprising five or more judges.

The division bench headed by Justice Muhammad Sajid Mehmood Sethi heard the appeal against LHC's decision. The second member of this bench was Justice Tariq Saleem Sheikh.

A day earlier, LHC’s Justice Jawad Hassan directed the speaker to administer oath to Hamza Shehbaz Sharif at 11:30am today to put an end to the crisis in Punjab. The province had been functioning without a cabinet since the resignation of former Punjab chief minister Usman Buzdar last month.

However, the PTI filed an intra court appeal that led to the LHC constituting a division bench comprising Justice Sajid Mehmood Sethi and Justice Tariq Saleem Sheikh.

At least 17 petitioners, including PTI MPA Muhammad Subtain Khan, filed the appeal in the LHC though their advocate, Azhar Siddique.

The petitioners contended that "the high court’s single bench in the absence of any pleadings by any single party to be arrayed as respondents in the writ petition, on the very first day, has reserved judgement".

The PTI appellants stated that such conduct was unprecedented and in sheer deviation from the Constitution.

Read Hamza nowhere near taking oath as CM

“These proceedings have created havoc and turmoil,” they argued as a third writ petition was filed on the same cause of action – which has already been decided upon twice in earlier writ petitions.

The petitioners argued that the judicial proceedings of the single bench comprised “rude remarks against constitutional officers such as the Governor of Punjab and the President of Pakistan in the reserved judgment.”

“The haste and the procedure manifest an absence of justice,” they maintained, adding that the matter must be heard by a larger bench comprising not less than seven judges.

The appellants stated that the impugned order passed by the single bench was not “based on facts” and claimed it was in violation of Articles 48, 87, 133, 187, 190, 204, 248 and 255 of the Constitution.

"Article 248 of the Constitution provides protection to the president, provincial governors, the prime minister, federal ministers, ministers of state, chief ministers and provincial ministers. It states that the aforementioned shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions," the petition maintained.

Read more Hamza moves LHC over oath-taking as CM Punjab

Later, the bench, accepting PTI counsel’s request, suspended some observations given by LHC’s single bench Justice Jawad Hassan in his judgment’s paragraph 9.

The observation read: "Although while passing the judgment this court has enunciated the principles of law having biding effect under Article 201 of the Constitution which have been disregarded not only by the President of Pakistan but also by the Governor of the Punjab, causing nonfulfillment of his constitutional duty thereby violating Article 5 read with Article 189 and 201 of the Constitution.”

The matter will be taken up after Eid holidays. However, the bench admitting the plea issued notices to the respondents. As proceedings commenced, the appellant’s counsel was asked as to how this appeal is maintainable under the law when impugned judgment has already been implemented.

PTI’s counsel Advocate Azhar Siddique argued that if this bench comes to the conclusion that impugned judgment was nullity in the eye of law, then any superstructure built thereon would automatically fall to the ground and would be of no legal effect.

He further argued that neither the President Dr Arif Alvi and Punjab Governor Omar Sarfaraz Cheema were included as respondents in the constitutional petition, nor any notice of hearing was issued enabling them to controvert the contentions raised there, but despite that adverse remarks had been passed against them, which were liable to be expunged.

He further submitted that important legal and constitutional questions raised by learned counsel for appellants over maintainability of constitutional petition have neither been noted nor repelled with reasons in impugned judgment.

"Since interpretation of various constitutional provisions was involved, notice in terms of Order XXVII-A of C.P.C. was required to be issued to learned Attorney General for Pakistan and Advocate General of Punjab, but the mandatory provisions of law were not complied with and learned single judge passed the impugned judgment without due process guaranteed under Articles 4 and 10-A of the Constitution of the Islamic Republic of Pakistan, 1973," Azhar added.

He argued that the high court has no authority to nominate any specific person, including Speaker of the National Assembly, for administration of oath to the newly-elected Chief Minister Punjab, thus the impugned judgment, being in violation of various provisions of the Constitution as well as applicable law, is unsustainable.

LHC's Justice Jawad Hassan on Friday had directed National Assembly Speaker Raja Pervaiz Ashraf to administer the oath to Hamza Shehbaz by 11:30 am on Saturday.

Earlier, LHC CJ had passed orders twice. The first was to President Arif Alvi to nominate anyone for administering the oath to Hamza but the order was in vain. The second time, the LHC chief justice had advised the Punjab governor to ensure the swearing-in of Hamza, but the constitutional obligation was not followed.

The PML-N leader for the third time knocked the LHC doors over not being administered his oath. This time, the petitioner had requested the LHC to “nominate any person” for the administration of oath at the Punjab Governor House at a specified time calling for the "coercive arm of the State should be set in motion for the implementation of the court orders".


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