Chief Justice of Pakistan Justice Gulzar Ahmed. PHOTO: SUPREME COURT
The draft petition comes only a day after Chief Justice Gulzar Ahmed questioned the induction of a large number of unelected advisors and special assistants in the prime minister’s cabinet.
His remarks came during the hearing of a suo motu case on the government’s measures to curb the spread of coronavirus in the country.
Lawyers Muhammad Arshad Khan and Ghulam Dastagir Butt will be filing a constitutional petition under Article 184(3) through Jahangir Jadoon who is also the office bearer of Pakistan Muslim League-Nawaz (PML-N) legal wing.
The government officials believe that the petitioners are proxies of the PML-N.
Meanwhile, during the tenure of incumbent chief justice, only one constitutional petition has been entertained.
The matter of the appointment of advisers and special assistants is also pending in the Islamabad High Court.
The federal government and prime minister’s all appointed advisers and special assistants have been made respondents in the petition which is set to be filed in the apex court today.
The petition states that the appointments made directly or indirectly to exercise the power and control the government department are
against the basic and fundamental rights to be dealt in accordance with law and the rule 4(6) of rules of business 1973 are inconsistent with the constitutional guarantee in form of fundamental rights of its citizen.
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"The Prime Minister is neither a King nor a Monarch , but is in the domain of trust and under Article 5 of the Constitution, he is obliged to obey the Constitution and law like any other ordinary citizen, and while exercising his executive authority , his discretion is neither brazen nor arbitrary but subject to constitution, since he has taken the oath to discharge his duties and perform function solely in accordance with the Constitution of Pakistan."
The petition argues that the appointments are against the constitution, and that rule 4(6) of the Rules of Business, 1973 was ultra vires and against the constitution.
“The federal government has no authority to appoint any unelected person as advisers and SAPMs [special advisers to the prime minister] with the status of Federal Minister and Minister of State,” the petition maintains.
Referring to the induction of advisers and special assistants, the petitioners call for the apex court to declare that respondents No 6-24 are not entitled to any financial benefits, including salaries, allowances, perks, and privileges.
“The respondents No 6-24 may kindly be directed to surrender all the salaries and other perks and privileges obtained from the date of assuming of office till their removal,” the petition says.
It also contends that under Article 1 of the constitution, affairs of the state are to be run in accordance with the provision of the Constitution of Islamic Republic of Pakistan.
The petition cites Article 90, which states that “The Cabinet under Article 91 consisting of PM as its head and the Federal Minister and Ministers of State under Article 92 helped by the advisers under Article 93 having the Advice of Attorney General Under Article 100 of the Constitution of Islamic Republic of Pakistan for the exercise of the Executive Authority of the Federation under the Rules of Business 1973, made under Article 99 thereof and any other post or office or office unless provided under the Constitution or law etc is illegal, void ab initio, ultra vires the Constitution and corm non-judice.
“Conferring the status of federal minister and minister of state on advisers and SAPMs, and giving them executive authority, therefore, is unconstitutional, illegal, void and ultra vires to the constitution and is liable to be set aside in the interest of justice and democracy,” the petition further argues.
It states that the act of the respondents No 1-5 is against the constitutional rights guaranteed to the petitioners and public at large.
Moreover, the petitioners observe that further grounds will be submitted at the time of the hearing of the petition.
Meanwhile, another lawyer says that both the advisers as well as SAPMS are public office holders who deal with matters of utmost public importance considerably affecting the public at large and calls for making their assets public.
“Hence, to safeguard, advance and realize the public’s fundamental right to information, it is indispensable that the Advisors and SAPMS private assets shall be accessible to public.”
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