PESHAWAR: PTI Chairman Barrister Gohar Ali Khan on Wednesday moved the Peshawar High Court (PHC) against the imposition of emergency and governor’s rule in Khyber Pakhtunkhwa, requesting the court to declare the move unconstitutional.
The emergency, declared on Sunday, follows heightened tensions between the PML-N-led federal government and the PTI-led KP government. The Centre and opposition have been at odds over various issues, particularly the counterterrorism policy, which was one of the main reasons cited by both parties behind the breakdown of their Oct 3 talks.
Governor Faisal Karim Kundi has assumed the role of running the province on behalf of the Centre, with an 11-member technocratic KP Advisory Council formed to assist him. The federal government has also authorised the deployment of Pakistan Army troops and assets in aid of civil power in KP.
Advocate Shah Faisal Ilyas submitted the petition challenging the emergency proclamation on behalf of the PTI chairman. A copy is available with Dawn.
The petitioner requested the PHC to declare the Oct 11 emergency proclamation as “unconstitutional, ultra vires, coram non judice, tainted with malice in law and fact, devoid of objective material, and of no legal effect”; and urged it to set the proclamation aside.
Barrister Gohar is represented by a panel of lawyers, including Barrister Sameer Khosa, Salman Akram Raja, Ali Zaman, Sardar Haseeb Ahmad and Zainab Shahid.
Filed under Article 199 (jurisdiction of high court) of the Constitution of Pakistan, the petition named the Federation of Pakistan (through the secretaries of the Cabinet, law ministry, interior ministry and defence ministry); the province of KP; KP Governor Kundi; the KP Assembly speaker; and the secretary of the KP Home and Tribal Affairs Department as respondents.
Sohail Afridi, the now non-functional chief minister of the province following the imposition of governor’s rule, was also named as a pro forma respondent.
Gohar challenged the “constitutionality, legality and vires” of the Oct 11 Proclamation of Emergency in the province, the order deploying army troops to the province, and “all consequential and derivative executive orders, notifications, and bodies” constituted as a result, including the establishment of the KP Advisory Council and the “arbitrary” detention and unseating of Afridi as the chief minister.
Afridi and some of his cabinet members were taken into preventive custody shortly after the imposition of emergency and governor’s rule, as confirmed by officials on Monday.
The petitioner sought further declaration from the PHC that Paragraph (3) of the proclamation, which purported to direct that the KP CM and ministers cease to hold office, was “illegal, ultra vires the Constitution, and in violation of the fundamental rights guaranteed under Articles 4, 9, 17(2), 25 and 130”.
He requested that the court order the immediate constitutional restoration of Afridi as the lawful chief minister of KP, along with his provincial cabinet, with full executive powers vested under Article 130 (the cabinet) of the Constitution.
The PHC was further requested to declare that Paragraph (2) of the proclamation — transferring the legislative powers of the KP Assembly to Parliament in the absence of a prior resolution passed by the assembly as required under Article 232(1) — was “void ab initio and an unconstitutional usurpation of provincial autonomy”.
The plea also urged PHC to restrain the federation from “tabling, entertaining, or enacting any provincial legislative business concerning Khyber Pakhtunkhwa in Parliament”.
The petitioner requested the court to declare as illegal and unconstitutional and to set aside, dissolve or permanently restrain all executive orders, notifications, actions, and bodies created “pursuant to or under the colour of” the proclamation.
These included the constitution of the 11-member KP Advisory Council headed by Governor Kundi; the establishment of the “Area Development Secretariat” (ADS) across 12 districts of the province; and the unseating of the advocate general of KP and purported appointment of any replacement officer.
The petitioner also challenged the Oct 11 order of army deployment under Article 245, requesting the court to declare it as unconstitutional on the basis that it could not “supplant or bypass the civilian executive and constitutional administration” of the province, and could not be invoked in the absence of a lawful requisition by the provincial government headed by Afridi.
Barrister Gohar sought directives for respondents, including the federal government and KP governor, to immediately disclose, produce, and place before the PHC “the entire record and so-called ‘objective material’”, including Governor Kundi’s report and the summary of the federal cabinet, upon which the emergency proclamation and subsequent orders were alleged to be founded.
He also sought directives for the immediate release of Afridi and members of the KP cabinet and assembly from “unlawful executive or preventive detention”.
Additionally, the petition requested the court to permanently restrain the respondents from “obstructing, barricading, or creating physical impediments” to the lawful functioning of the CM’s Secretariat, Civil Secretariat and KP Assembly.
It further requested that the PHC suspend the operation and implementation of the notification establishing the ADS, and restrain its administrator and additional chief secretary from exercising parallel administrative or law enforcement powers in the designated 12 districts; and additionally restrain the federal government from “tabling, considering, or passing” any legislative measures or bills pertaining to the Provincial Legislative List or affairs of KP in Parliament.
The petition also urged the court to direct respondents to immediately produce Afridi before the PHC and restrain the state from placing him or any cabinet members under preventive detention, or transferring them out of the jurisdiction of the court.
It also asked the court to direct the local administration and authorities to immediately remove all containers, barricades and blockades from around the KP Assembly Secretariat and CM’s Secretariat and to ensure unimpeded access to all elected representatives. Finally, it also requested the granting of “any other relief, order or direction” that the court deemed proper in the circumstances of the case.
The PTI chairman stated as grounds for the petition that the issuance of such a proclamation was subject to the “indispensable condition precedent of a prior resolution passed by the provincial assembly of that province”.
“No such resolution was ever moved, debated, or passed by the provincial assembly of Khyber Pakhtunkhwa,” he contended. “In the absence of this mandatory constitutional prerequisite, the federal government had no constitutional competence to advise or issue the impugned proclamation under Article 232(1), rendering the entire exercise coram non judice.”
The petition claimed that by unilaterally bypassing the elected provincial assembly on an alleged question of internal disturbance, the impugned proclamation violated “the federal structure guaranteed under Article 1, the principles of democracy and provincial autonomy enshrined in the Objectives Resolution (Article 2A), and the legislative domain of the province recognised by Article 142 of the Constitution”.
On these grounds, the proclamation was “ultra vires the proviso to Article 232(1) read with Article 1, 2A, and 142 of the Constitution” and liable to be set aside, it added.
Gohar further contended that the proclamation made no mention of any “grave emergency” arising from a war or other external aggression, as required by the text of Article 232(1) — nor would such an assertion be supported by facts. He maintained that neither the country nor KP faced a grave emergency from any ongoing war or external aggression, nor was there any known risk or threat of such.
The petition further contended that the reliance on “internal disturbances” in the province needed to be measured against a demonstrable and objective criterion which was “entirely absent” from the impugned proclamation.
“Despite an unfortunately high number of incidents of terrorist violence in the Balochistan province, no declaration of emergency has been declared or even contemplated,” it highlighted.
“This clearly demonstrates that the terrorism and security pretext in Khyber Pakhtunkhwa is nothing but a colourable device, deployed in sheer violation of Article 25.”
The petition alleged that this pretext was deployed solely because the KP government was formed by the opposition and their demands with respect to PTI founder Imran Khan were not acceptable to the federal government.
It added that the federal government’s claim was also belied by the fact that even at the peak of the phase of terrorism between 2007-2015, “no emergency was ever imposed anywhere inside Pakistan”.
He also argued that the invocation of Article 234 was “without lawful authority, tainted with malice in law, and devoid of jurisdictional basis”.
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