Finally finding a solution to the lingering problem, Lahore High Court Justice Jawad Hassan on Friday directed National Assembly Speaker Raja Pervaiz Ashraf to administer oath to Punjab Chief Minister-elect Hamza Shehbaz by 11:30am on Saturday (today).
Earlier, LHC Chief Justice Muhammad Ameer Bhatti had passed orders twice. The first was to President Arif Alvi to nominate anyone for administering oath to Hamza but 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.
It was for the third time when the PML-N leader had 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 and the coercive arm of the State should be set in motion for the implementation of the court orders.
As the proceedings commenced on Friday morning, Deputy Attorney General Mirza Nasar Ahmad objected to the maintainability of the petition on the ground that neither the president, nor the governor had been impleaded as a party to the plea.
Advocate Muhammad Azhar Siddique also objected to the maintainability of the petition by referring to articles 187 and 204 of the Constitution.
He argued that the applicants had filed an intra-court appeal before the division bench of the LHC against the judgment whereby the election of the chief minister was ordered.
He added that the respondents had not been heard by the court while passing judgments in violation of Article 10(A) of the Constitution.
Justice Jawad asked Hamza’s lawyer Ashtar Ausaf that why he was not filing a contempt of court plea if as per his stance, the LHC’s orders were not being complied with. Advocate Ausaf replied that his client had instructed him to file the case of non-administration of oath.
Over reiteration by Advocate Ausaf that the court’s orders were being flouted and thrown in the air by the Punjab governor as well as the president, Justice Jawad remarked: “It is the question of the court’s honour if its orders are not being implemented.”
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Advocate Ausaf, quoting a past example, argued that a former prime minister had to lose his premiership in contempt proceedings when the country’s top court had awarded him two minutes punishment.
To the judge’s query as to who was suffering the loss if there was no chief executive of the province, the deputy attorney general apprised the court that the prime minister had sent advice to President Alvi thrice requesting him to nominate anyone for the administration of the oath.
During arguments, Advocate Azhar Siddique requested the court to constitute a larger bench for hearing the matter. He also raised an objection that no notices had been issued in the first and second petitions of Hamza. Justice Jawad remarked that there was no need to form a larger bench.
Justice Jawad asked Hamza's lawyer why the governor had not been made a respondent in the petition. Hamza’s counsel replied that the governor could not be made a respondent.
The deputy attorney general told the court that he was being forced not to speak anything about the president. "I want to make it clear that I do not know the president. I am representing the federation and my client is only the federation."
On the court’s query whether or not the speaker or his deputy could be nominated for administering the oath, the deputy attorney general replied that the Senate chairman could be nominated after the president. “Any person, if nominated, could also perform the duty to administer oath,” he added.
After hearing the detailed arguments, the court first reserved its decision, which was later announced on Friday night.
In its judgment, the LHC noted: “Although while passing the judgments this court has enunciated the principles of law having binding effect under Article 201 of the Constitution which have been disregarded not only by the president of Pakistan but also by the Punjab governor, causing non-fulfilment of his constitutional duty thereby violating Article 5 read with articles 189 and 201 of the Constitution,” the judgment added.
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“The Punjab governor has also failed to exercise his powers and to perform his duties by avoiding the administration of oath to the newly elected chief minister thereby violating the clear advice of this Court to either administer the oath himself or through his nominee while elaborating and interpreting Article 255 of the Constitution.
“The word ‘impracticable’ used in Article 255 of the Constitution makes it quite clear that the oath is to be made before a specific person and in case it is impracticable for the reason it may be made before such person as may be nominated by that person.
"Both decisions of this court despite having a binding effect have been ignored deliberately by the president of Pakistan as well as by the Punjab governor. The governor through his conduct has also himself made impracticable for the oath to be made before him."
On the directions of the LHC, the contest for the chief minister’s slot was held on April 16. PML-N's Hamza was elected as the Punjab CM by bagging197 votes out of 371. The number of 197 is clearly above the simple majority, hence the petitioner was declared the CM.
Since that day, the Punjab governor has seemed reluctant in administering oath to Hamza.
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