Legal wrangle: PTI likely to mount court challenge on Wednesday

Petition against Punjab caretaker CM to be chiefly based on question of bias against PTI

Hasnaat Malik January 24, 2023


The composition of bench will be considered significant to decide the matter as PML-Q leader and former Punjab chief minister Pervaiz Elahi announced to challenge in the Supreme Court the appointment of Syed Mohsin Raza Naqvi as caretaker provincial chief by the Election Commission of Pakistan (ECP) a day earlier.

The petition will be filed through Ali Zafar Advocate in the apex court, The Express Tribune has learnt.

A member of the PTI legal team expected that the petition would be filed under Article 184 (3) of Constitution on Wednesday.

He said the appointment was being challenged on multiple grounds, especially on the question of bias against the PTI as well as Voluntary Return (VR) arrangement by Naqvi in a bank loan scam.

Meanwhile, a member of the PML-N maintained that the apex court had no jurisdiction to entertain the petition against the appointment, saying Article 224A of the Constitution was clear on the matter.

On the question of bias, he said the burden would be on the petitioner to prove that Naqvi was against the PTI, adding that the Punjab caretaker chief minister was not accused in the VR settlement matter.

"The matter is 10 years old, therefore, disqualification period of 10 years has already lapsed," he added.

The PML-N member also stated that there were corruption charges of serious nature against Elahi in the then investigating officer and incumbent NAB Chairman Aftab Sultan report submitted in a bank scam case.

In his report, Sultan had said that the then Punjab chief minister, Elahi, had siphoned Rs5.4 billion from the bank during the Musharraf regime.

Senior lawyers believe the composition of the bench will be significant if the PTI’s petition is fixed for hearing.

Since February last year, senior most judges have not been included in the bench to hear high-profile cases. Currently, the Supreme Court is also divided on ideological lines on the matter.

Same was witnessed in Punjab Assembly former deputy speaker Dost Mazari case wherein the ruling political parties had requested to form full court to hear the matter. However, a three-judge special bench led by Chief Justice of Pakistan Umar Ata Bandial had rejected the plea for the constitution of a full court.

Subsequently, the federal government representatives did not endorse CJP’s nominees for their elevation to the apex court.

Senior lawyers agree that the top court’s decisions had played a crucial role in the appointment of Elahi as the chief minister. However, they maintain that the case against the caretaker CM will not be easy.

The CJP had been continuously emphasising that the Supreme Court strikes a balance in the prevailing political situation.

A senior PTI lawyer did not object if the Supreme Court kept the petition pending to observe the conduct of the caretaker chief minister.

He said the purpose of filing the petition would be achieved if the apex court gave observations for supervising the election process in Punjab, adding that the credibility of the ECP posed serious questions.

Hafiz Ahsaan Ahmad Khokhar Advocate termed the act of challenging the appointment of caretaker chief minister before the Superior Court ‘unique’.

He said since the introduction of the 18th and 20th Constitutional amendments, which dealt with the appointment of caretaker government, no such appointment had earlier been challenged either by treasury or opposition despite the fact that earlier some key caretaker appointments were decided by the ECP when both sides failed to evolve a consensus.

He said the caretaker appointment for both the premier and chief minister was a stopgap arrangement for a 90-day period, adding that their job was only to assist the ECP in holding free, fair and transparent elections as per constitutional requirements and to perform the day-to-day government affairs.

According to Khokhar, as the appointment of Punjab chief minister was made in view of different provisions of Article 224A of the Constitution, there would be “very limited” chances for the petitioners to cross the bridge of maintainability of the petition under Article 184(3) of the Constitution as government and the opposition had failed to reach a consensus on the name of the caretaker provincial chief minister.

The lawyer explained that though the Supreme Court had vast power under Article 184(3) of the Constitution to take cognisance or undo any illegal action, in situations like the present one where the appointment was a part to trigger and only assist the election process for a period of 90 days, the scope of the petitioners to prove any violation or enforcement of fundamental rights granted under the Constitution would be limited.


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