PHC issues notices in petitions challenging governor’s rule, emergency in KP; hearing adjourned till Nov 10

Why This Matters

Key context: <p>PESHAWAR: The Peshawar High Court (PHC) on Tuesday issued notices to the federal and Khyber Pakhtunkhwa governments in several petitions challenging the imposition of emergency and governor’s rule in the province on Oct 11.</p> <p>PTI Chairman Barrister Gohar Ali Khan <a href="https://www.dawn.com/news/2037118">moved</a> the PHC on Oct 14 against the measures, requesting the court to declare them unconstitutional. The move to impose emergency and governor’s rule followed heightened tensions between the PML-N-led federal government and the PTI-led KP government.</p> <p>On Tuesday, a two-member bench comprising Justices Ijaz Anwar and Muhammad Faheem Wali took up several petitions, including Gohar’s. PTI leader Shandana Gulzar, the KP Bar Council and leaders of the Tehreek-i-Tahafuz-i-Ayin-i-Pakistan (TTAP) have also filed pleas.</p> <p>The bench adjourned the hearing till Nov 10 after hearing preliminary arguments.</p> <p>The court said an order would be issued afterwards, adding that notices would also be issued to Attorney General for Pakistan Mansoor Usman Awan and the KP advocate general.</p> <p>Barrister Sameer Khosa and PTI Secretary General Salman Akram Raja appeared on behalf of Gohar.</p> <p>Barrister Sameer argued that a resolution passed by the provincial assembly was mandatory for imposing governor’s rule and emergency.</p> <p>“No approval was obtained from the provincial assembly,” he told the court.</p> <p>Noting that the National Assembly and the Senate <a href="https://www.dawn.com/news/2037086">approved</a> the action later, the lawyer said, “We have also challenged this in the miscellaneous application.”</p> <p>“The proviso to Article 232(1) states that approval from the provincial assembly is necessary. The word ‘shall’ is used, which means this condition is mandatory,” the petitioner’s lawyer said.</p> <p>He reiterated that the measures had been taken without the provincial assembly’s approval and were therefore illegal. The counsel contended that the situation in KP was not beyond the provincial government’s control.</p> <p>Sameer further contended that the chief minister, Sohail Afridi, and the speaker of the provincial assembly were currently “missing”.</p> <p>Afridi, who has become non-functional as the KP CM, has not been seen since the imposition of governor’s rule and emergency. Federal ministers said a day later that he and some of his cabinet members were in <a href="https://www.dawn.com/news/2036769"><u>preventative custody</u></a>.</p> <p>The bench then asked whether the petition included a request for the leaders to be presented before the court or recovered.</p> <p>“Yes, we have made that request in this application,” the counsel replied.</p> <p>He referred to a Supreme Court judgment in the case of ex-CM Pir Sabir Shah, in which the SC had established that the chief minister and the cabinet would continue to function if an emergency were imposed.</p> <p>“In the current case, the chief minister, the cabinet and the advocate general have been stopped from working and rendered inactive,” Sameer said.</p> <p>“Our plea is that the assembly be restored and the chief minister and speaker be released,” he added.</p> <p>Raja also argued that governor’s rule and the state of emergency had been imposed without “fulfilling legal requirements”, calling for the measures to be revoked and the provincial assembly restored.</p> <p>The petitioner, Barrister Gohar, also addressed the bench, arguing that the PTI-led government in KP had always supported the Centre in the fight against terrorism.</p> <figure class='media w-full sm:w-1/2 media--right media--embed media--uneven' data-original-src='https://www.dawn.com/news/1971238'> <div class='media__item media__item--newskitlink '> <iframe class="nk-iframe" width="100%" frameborder="0" scrolling="no" style="height:250px;position:relative" src="https://www.dawn.com/news/card/1971238" sandbox="allow-same-origin allow-scripts allow-popups allow-modals allow-forms"></iframe></div> </figure> <p>He went on to claim that 12 MNAs and 14 MPAs affiliated with the PTI had been “picked up”.</p> <p>“Raids are being conducted on the homes of our members; they are being harassed,” he added. “We say that Pakistan comes first, we say that we are one, this country is ours,” Gohar said.</p> <p>Gohar further contended that on Oct 11, deputy commissioners and district police officers had been replaced, as had officers posted at the advocate general’s office.</p> <p>Appearing on behalf of Gulzar, advocate Muazzam Butt also highlighted that the KP Assembly’s approval had not been obtained before the imposition of governor’s rule and the state of emergency.</p> <p>He said that an apex committee had been formed under the <a href="https://www.dawn.com/news/1872106/nap-at-10-assessing-pakistans-response-post-aps">National Action Plan</a> (NAP), arguing that it was the committee’s responsibility to assess the security situation in the province.</p> <figure class='media w-full sm:w-1/2 media--right media--embed media--uneven' data-original-src='https://www.dawn.com/news/1872106/nap-at-10-assessing-pakistans-response-post-aps'> <div class='media__item media__item--newskitlink '> <iframe class="nk-iframe" width="100%" frameborder="0" scrolling="no" style="height:250px;position:relative" src="https://www.dawn.com/news/card/1872106" sandbox="allow-same-origin allow-scripts allow-popups allow-modals allow-forms"></iframe></div> </figure> <p>He further argued that responsibility for terrorism could not be placed on the provincial government given the existence of the apex committee.</p> <p>Representing the KP Bar Council, Advocate Babar Khan Yousafzai appeared before the court and adopted the arguments advanced in Gohar’s case.</p> <p>Another petitioner, Advocate Qaiser Shah, supported the imposition of the state of emergency but opposed the proclamation insofar as it imposed governor’s rule.</p> <p>A petition has also been filed by National Democratic Movement (NDM) central and provincial presidents Mohsin Dawar and Bushra Gohar, which was fixed for hearing on Oct 20 (Tuesday).</p> <p>In his petition, Barrister Gohar had urged the PHC to declare the federal government’s decision to impose emergency and governor’s rule in KP “unconstitutional, ultra vires, coram non judice, tainted with malice in law and fact, devoid of objective material, and of no legal effect” and to set aside the proclamation.</p> <p>Filed under Article 199 of the Constitution, the petition named the federation of Pakistan (through the secretaries of the Cabinet Division, law, interior, and defence ministries); the province of KP; KP Governor Faisal Karim Kundi; the KP Assembly speaker; and the secretary of the KP Home and Tribal Affairs Department as respondents.</p> <p>Sohail Afridi, who is no longer functioning as the province’s chief minister following the imposition of governor’s rule, was also named as a pro forma respondent.</p> <p>Gohar challenged the “constitutionality, legality and vires” of the October 11 decision, the order deploying army troops to the province, and “all consequential and derivative executive orders, notifications, and bodies” constituted as a result.</p> <p>These included the establishment of the KP Advisory Council and the “arbitrary” detention and removal of Afridi as the lawful chief minister of KP, along with his provincial cabinet, which had been vested with full executive powers under Article 130 of the Constitution.</p> <p>Following the <a href="https://www.dawn.com/news/2036352/emergency-governors-rule-imposed-in-kp-as-president-approves-cabinet-decision"><u>imposition </u></a>of emergency and governor’s rule in the province, the federal government formed an 11-member technocratic KP Advisory Council.</p> This development from dawn.com highlights ongoing changes in the sector.