PHC can't intervene in Kumar's oath in provincial assembly, court rules

PTI's Kumar is currently facing trial in the murder case of former MPA Soran Singh


Hidayat Khan May 18, 2018
ECP says cannot remove alleged murderer’s name from priority list before court’s decision. SOURCE: DUNYA TV

PESHAWAR: The Peshawar High Court (PHC) on Thursday ruled that it is beyond their constitutional jurisdiction to interfere in the process of the provincial assembly in administering an oath to a member of the legislature.

The court further recalled the contempt notices issued by the PHC to the speaker of the Khyber Pakhtunkhwa (K-P) Assembly, Asad Qaiser, and five other MPAs for failure in administering an oath to Baldev Kumar, an MPA-elect. Kumar is currently facing trial for the murder of former MPA Soran Singh.

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"It is but clear that substantial compliance was carried out by the speaker of K-P assembly, and no case for contempt was made out," says the detailed judgment written by Chief Justice Yahya Afridi of PHC and Justice Syed Afsar Shah.

A two-member bench comprising Justice Ikramullah Khan and Justice Qalandar Ali Khan had earlier issued contempt notice to the speaker and five MPAs while hearing a petition filed by Kumar as the court had issued his production order and taking his oath as a member of the assembly.

The five members of the assembly were impleaded as respondents in the contempt petition, for their alleged role in stymying the administration of the oath, after Kumar was brought to the assembly.

The 16-page judgment also ruled that the earlier order of the court was aimed only at directing at issuing production order of Kumar for administering him oath as MPA to enable him to vote in Senate election.

Admittedly, the speaker issued the order of production; Kumar was brought to the House. Whatever unfolded after his presence in the house is beyond the scope of contempt proceedings, as neither the court issued a specific directive nor are the internal proceedings of the House justifiable before a high court, as per Article 69 of the Constitution.

“This court cannot traverse beyond the directions, and they have been substantially been complied with by the speaker. Hence, the notices issued to the speaker and other MPAs are hereby recalled,” said the judgment.

The PHC chief justice admitted that the speaker had ordered the production of the petitioner during the then ongoing session of the Assembly, not once but twice, but for due to lack of quorum, Kumar was unable to be administered oath.

Kumar is particularly unpopular among lawmakers, especially from his own party, the Pakistan Tehreek-e-Insaf (PTI).

The MPA-elect is accused of orchestrating the murder of the incumbent of the very seat he is trying to take the oath for, PTI MPA Sardar Suran Singh on April 22, 2016.

The counsel of the petitioner, Mohib Jan Salarzai, insisted that speaker could administer an oath to his client, once he entered the assembly house, however, the judgment opposed his contention saying oath could only be administered before the Provincial Assembly and when it is in the session having the requisite quorum. “The constitution provides that members of the assembly can take oath, when it is in session having the requisite quorum,” the court ruled.

When counsel for the petitioner was confronted with this situation, he insisted for the issuance of a fresh order for assembly session and the petitioner production for oath but the request was not positively entertained as Kumar was no more in prison and was acquitted by the Anti-Terrorism Court.

Baldev Kumar fails to take oath again

The court declared that the court cannot direct the speaker to call assembly session. “Under the law, the summoning of Provincial Assembly is beyond the mandate of authority vested in the speaker under Rule-12 of the Rules of 1988,” says the judgment.

“As under the articles-54 and 127 of the constitution, the speaker is bound to summon the Provincial Assembly only on a requisition signed by not less than 1/4th of the total members of the Assembly.”

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