PHC approves appeal to not take oath on reserved seats in KP

Peshawar: The Peshawar High Court (PHC), giving a short verdict, accepted the request of the opposition members on the issue of not taking the oath of the members on reserved seats in Khyber Pakhtunkhwa.

According to the details, a two-member bench comprising Justice SM Atique Shah and Justice Shakeel Ahmed of PHC heard the petitions for taking oath from the elected members of Pakistan Peoples Party (PPP), Pakistan Muslim League-Nawaz (PML-N) and Jamaat-e-Ulema Islami (JUI) on reserved seats in Khyber Pakhtunkhwa.

During the hearing, Justice SM Atique Shah inquired whether the Speaker is refusing to take oath, to which the Speaker's lawyer Ali Azeem Afridi replied that it is not the case, for the first time the Governor's order comes through the opposition leader, proper procedures is not followed.

Justice Atique asked if anyone has challenged the Governor's order. To which Speaker Assembly's lawyer Ali Azeem replied that no one has challenged the governor's order. On March 21, the secretary of the provincial assembly wrote a letter.

Justice Shakeel Ahmed said that leave the secretary's letter, tell us whether the governor can call the assembly meeting or not? On which the lawyer replied: “According to Article-109 the Governor can, it will be read with Article-105. If the Governor does this, then the Chief Minister will be powerless”.

The lawyer of the opposition while giving arguments stated in the court that the High Court also gave a decision regarding the allotment of reserved seats. Not taking oath is also a violation of this decision of the larger bench. If the Speaker does not take the oath, the Governor can also take the oath.

Justice Atiq Shah inquired whether it is not necessary to take the oath of the members in the House? To which the opposition lawyer replied that even if the members are called for the Senate elections, there can be an oath taking. The governor has the power to convene the meeting.

The judge remarked: “The Governor can call a meeting on the advice of the Chief Minister. It seems that no one has prepared, everyone just came to the court”

He asked if the Assembly session is required for swearing or not? Will the oath be in the assembly session or it can be in the chamber? You say it can be done without the assembly session, how will it happen?

The court said that the oath of the members is taken in the assembly session. President and Governor take oath from the Prime Minister and Chief Minister, they are not sworn in the Assembly. You people should not play with the constitution, you should respect the constitution.

During the hearing, Advocate General Shah Faisal Atmankhil told the court that Article-65 says that when a member is elected, he will take oath and it is in the third schedule that it will be in the assembly session. It has been defined by the PHC in the case of Baldukumar and Speaker Asad Qaiser.

Justice Shakeel Ahmed remarked that the members who have been notified have the right to be sworn in. It is about the constitution and the law. Article-109 does not use the word ‘subject to constitution’. How can you read Article-109 in the context of any other Article of the Constitution?

The Advocate General replied that when the Chief Minister is not present or there is no confidence against him, then the Governor can convene the meeting under Article-109.

Justice Atique Shah addressed the Advocate General that how are you relying on the decision which the Supreme Court has called a bad law? What's your team doing, sleeping? They haven't even seen it? How are you referring this judgment to the court? To which the Advocate General said that this will not happen in future and I withdraw the case reference I gave.

After hearing the arguments of the parties, the PHC reserved its decision on the petitions of the opposition members to take oath on specific seats in the Khyber Pakhtunkhwa Assembly.

The Court pronounced a short judgment and accepted the request of the opposition members.