PESHAWAR: The Peshawar High Court on Friday put the Election Commission of Pakistan and the Khyber Pakhtunkhwa government on notice asking them to respond to a petition against the appointment of the current caretaker chief minister and his cabinet.

A bench consisting of Justice Arshad Ali and Justice Wiqar Ahmad issued the order after preliminary hearing into the petition filed by lawyer Tajamul Shah, who requested it to declare unconstitutional and illegal the Nov 12, 2023, notification by the provincial governor to appoint retired Justice Syed Arshad Hussain as the CM as well as the subsequent appointment of the caretaker cabinet members.

The petitioner also sought the court’s orders to strike down the acts of the caretaker CM and his cabinet after their appointment by declaring them against the law.

He requested the court for an interim relief saying until the final disposal of the petition, the impugned notification should be suspended and the caretaker chief minister and his cabinet be stopped from exercising their official powers.

Petitioner insists governor’s act unconstitutional and unlawful

Respondents in the petition were caretaker chief minister Arshad Hussain Shah, all members of his cabinet, provincial advocate general, attorney general for Pakistan, provincial law secretary, ECP through its secretary, former chief minister Mehmood Khan and former opposition leader in the provincial assembly Akram Khan Durrani.

Advocates Wali Khan Afridi and Shah Faisal Ilyas appeared for the petitioner, whereas advocate general Aamir Javed turned up for the provincial government.

The AG opposed the petition contending that the appointment of the chief minister was in accordance with the mechanism given in the Constitution.

The counsel for the petitioner said in Jan 2023, the KP Assembly was dissolved by the governor on the advice of the then chief minister, Mahmood Khan, while a caretaker government was formed in order to run the day-to-day affairs of the province and hold fair elections within 90 days of the assembly’s dissolution.

They added that the caretaker setup failed to meet that election deadline.

The lawyers said that on Nov 11, caretaker Chief Minister Mohammad Azam Khan died leading to the dissolution of the provincial cabinet.

They said that in an utter violation of the Constriction’s Article 224 and 224-A, Mehmood Khan and Akram Durrani, who were no longer the chief minister and leader of the opposition in the KP Assembly, respectively, sat down and announced retired Justice Syed Arshad Hussain as the caretaker chief minister after which the impugned notification was issued on Nov 12.

The counsel said that the ‘unconstitutional’ chief minister after taking oath formed his provincial cabinet in an unconstitutional manner and nowadays they’re running the affairs of the province without any legal backing.

They claimed that while Articles 224 and 224-A of the Constitution provided mechanism for the appointment of a caretaker chief minister, those provisions didn’t provide any procedure to be adopted in case of death or resignation of a caretaker chief minister.

The lawyers claimed that the jurisdiction laid down in Article 224 of the Constitution had not been properly complied with as presently, the provincial assembly was not there, so there was no leader of the house and leader of the opposition.

They added that the jurisdiction assumed by former CM Mahmood Khan and former opposition leader Akram Durrani was based on a political agenda and was not ‘sustainable’ in the eyes of the law.

Published in Dawn, December 2nd, 2023