The Lahore High Court (LHC) was told on Thursday that Punjab Governor Balighur Rehman had retracted orders to de-notify Chief Minister Chaudhry Parvez Elahi as the provincial chief executive after he managed to secure the confidence of 186 members in the Punjab Assembly (PA).
The revelation was made as a five-member bench took up a petition filed by the CM challenging Rehman’s de-notification order.
Last month, the Punjab governor denotified Elahi as the chief minister of the largest province in a bid to forestall ousted premier Imran Khan’s plan to dissolve the Punjab Assembly.
In his order dated Dec 22, the governor had said that since the chief minister had refrained from taking a vote of confidence at the appointed day and time, he ceased to hold office. Rehman, however, had asked Elahi to continue working as chief minister until a successor takes charge.
Subsequently, Elahi approached the court, saying the move was “unconstitutional, unlawful and of no legal effect”.
On Dec 23, the LHC had reinstated the PML-Q leader as the chief minister and restored the provincial cabinet as an “interim relief” after he submitted an undertaking assuring the court that he would not dissolve the provincial assembly until the next hearing (Jan 11).
On Wednesday, the court had remarked that a chief minister should have perpetual support from the majority of lawmakers in the house and had allowed Elahi to remain CM for one more day.
During the hearing today, Governor Rehman’s lawyer Mansoor Awan told the bench that his counsel had revoked the Dec 22 notification. “He has received the report of the vote of confidence and has no objections to it,” he said.
Subsequently, the court remarked that with the governor’s decision, the crisis in Punjab was now resolved.
“You solved the matter in assembly […] courts should not be involved in political matters unnecessarily,” it added and disposed of Elahi’s petition.
Later, the governor also confirmed the development in a tweet.
‘Next step is assembly dissolution’
Talking to reporters after the hearing, Elahi’s lawyer Barrister Ali Zafar said that after the court’s verdict, the PML-Q leader was now restored as the CM.
“The next step is dissolution which is a political matter and it has nothing to do with the court. Political leadership will decide on it,” he said.
Zafar clarified that the undertaking signed by Elahi previously, in which he had assured the court that he won’t dissolve the Punjab Assembly, was an “interim order”.
“The case has finally been decided and the undertaking is no more in place. The Constitution clearly says that the CM has the right to dissolve the assembly,” he added.
As the hearing began today, the additional attorney general requested the court to include the record of votes in the arguments. “The governor will not have any objections to it,” he said.
Here, Justice Abid Aziz Shaikh asked: “What do you have to say about Elahi taking the vote of confidence?”
Justice Asim Hafeez also inquired what the situation would be if the governor issued another notification.
“There would be no need for that after the assembly floor [proved it was in Elahi’s favour],” the AAG replied.
“The floor test has been completed […] does this means that the matter has been resolved now,” Justice Shaikh inquired.
For his part, Elahi’s lawyer Barrister Ali Zafar said that his counsel had met the governor’s first order: to take a trust vote. “His second notification regarding the de-notification should now be annulled.”
Justice Hafeez maintained that Elahi had taken a vote of confidence under Article 137 of the Constitution.
The law states: “In any matter with respect to which both Parliament and the Provincial Assembly have the power to make laws, the executive authority of the Province shall be subject to, and limited by, the executive authority expressly conferred by the Constitution or by law made by 2 [Majlis-e-Shoora (Parliament)] upon the Federal Government or authorities thereof.”
“Had Elahi taken the vote of confidence voluntarily, the situation would have been different,” the judge stated, adding that “prima facie, Elahi has taken the vote of confidence on orders of the governor”.
Only the governor can instruct the CM to take the vote of confidence, Justice Hafeez stressed.
Meanwhile, presenting his arguments on Rehman’s authority to fix the date and time of the vote of confidence, Barrister Zafar said that the governor could direct the speaker to call a session for a trust vote.
“The speaker then decides the day and time for it.”
Here, Justice Hafeez contended that the court could not give its opinion on the governor’s order. “We can just issue a judicial order.”
At one point during the hearing, Justice Shaikh asked how many days would be ideal to carry out a no-confidence vote.
Elahi’s lawyer replied that the governor gave his client two days when an ideal period of 14 days should have been provided. “He should have given a seven-day notice at the least.”
At that, Justice Hafeez observed that a session could be called on a holiday as well.
“If a considerable number of assembly members come to the governor and express lack of confidence [against the CM], can the speaker hold a session within three to four days,” he further asked.
Continuing his arguments, Zafar said that when the governor issued Elahi’s de-notification order, the chief secretary was confused. “He, therefore, wrote a letter to the governor asking how could such a notification be issued without an assembly session.”
The chief secretary then advised the CM to seek legal advice on the matter, the lawyer told the court.
“But he issued the notification when the governor again asked him to take action. I request the court to annul the de-notification orders,” Zafar added.
At that, Justice Shaikh maintained that the court only had to see whether the time given by the governor to hold a confidence vote was correct or not.
Subsequently, the hearing was put off till 12:30pm.
The petition, filed by Elahi, a copy of which is available with Dawn.com, named the Punjab governor through his principal secretary, the government of Punjab through its chief secretary and the PA speaker as respondents.
The application was submitted through Barrister Ali Zafar and Advocate Amir Saeed.
It said that on December 19, Governor Rehman issued an order summoning a PA session and requiring the chief minister to seek a vote of confidence from the house.
“In response to the order, the PA speaker gave a ruling declaring the summoning of the session to be unconstitutional and adjourned the ongoing session till Dec 22.”
The petition stated that both of Rehman’s order — for the vote of confidence and the de-notification — was passed “without lawful authority and are of no legal effect”.
It reasoned that the governor’s order regarding summoning a PA session was illegal under the Constitution and Rules of Procedure of the Provincial Assembly of the Punjab 1997.
“Without prejudice to the unconstitutionality of Respondent 1’s [the governor] act of summoning the session of Punjab Assembly during an already ongoing session, it is respectfully submitted that the governor neither the appointing authority of the petitioner nor has the power to remove the petitioner, and there is no constitutional provision enabling the Respondent No. 1 to pass the impugned order dated 22.12.2022 and declaring that the Petitioner ceases to hold his office of Chief Minister Punjab.”
The petition went on to say that Rehman’s order was “not sustainable because it has been passed due to grave misconstruction of the facts”.
It also highlighted that the de-notification order was “not sustainable as the resolution of vote of no confidence moved by the 20 percentum is pending before the Provincial Assembly, and the impugned order would make the resolution in-fructuous which would undermine the right of members of the Provincial Assembly regarding the vote of no confidence against the petitioner/Chief Minister”.
Subsequently, the petition prayed that the Punjab governor’s orders issued on Dec 19 and Dec 22 should be declared to be passed without any lawful authority and of no legal effect.
“It is further prayed that it may kindly be declared that the summoning of the session of the Punjab Assembly by the governor during an already ongoing session is unconstitutional, unlawful and of no legal effect,” it requested.
The petition pleads that the court should declare that there was no eventuality which lead to the conclusion that Elahi did not command the majority of the members of the provincial assembly.
“It is further prayed that it may kindly be declared that the Petitioner does not cease to hold his office of Chief Minister Punjab,” it stated, adding that the dissolution of the provincial cabinet should also be declared unlawful.
Crisis in Punjab
After Imran’s announcement of the assemblies’ dissolution, the coalition leaders sprung into action to prevent Elahi from dissolving the Punjab Assembly.
In a double-edged move on Dec 20, the Punjab governor asked the chief minister to obtain a vote of confidence from the Punjab Assembly, while PML-N and PPP lawmakers submitted a separate no-trust resolution against him in a bid to bar him from dissolving the assembly.
However, Punjab Assembly Speaker Sibtain Khan termed the governor’s orders as “illegal, against the provisions of the Constitution and thus stand disposed of”.
In his two-page ruling, the speaker maintained that the governor’s orders were not in accordance with Article 54(3) and Article 127. “The house is in session since Oct 23, 2022, and under Articles 54(3) and 127. No fresh session can be convened unless and until the current one ends,” the order read.
Subsequently, on Dec 21, the Punjab governor termed the speaker’s ruling “unconstitutional”.
In his order, the governor said under Article 130(7) of the Constitution that PA speaker’s ruling had no bearing on his order and termed it unconstitutional. The governor said the speaker’s ruling was also in violation of Rule 209 of the Rules of Procedure of the Provincial Assembly of the Punjab, 1997.
Lawyers reached by Dawn for their comments differed on the governor’s orders issued to the chief minister, they were unanimous that a legal battle appears to be the only way forward for the resolution of the current crisis in Punjab.
In a late-night move on Dec 23, the governor de-notified Elahi. In an order, he said: “Consequent to the facts that Ch. Parvez Elahi … refrained from obtaining the vote of confidence at 1600 hours yesterday (Wednesday), in line with an order under Article 130(7) of the Constitution … issued under my hand on Dec 19, 2022, in line with Rule 22(7) of the Rules of Procedure of provincial assembly of Punjab, 1997, and that he still has not done so even after the lapse of another 24 hours, I am satisfied that he does not command the confidence of the majority of the members of the Punjab Assembly, and therefore ceases to hold his office with immediate effect.”
As a result, “the provincial cabinet stands dissolved forthwith”, he said.
In terms of Article 133 of the Constitution, Elahi, “former Punjab CM, is hereby asked to continue to hold office until his successor enters upon the office of the chief minister”, the governor said.
However, in the early hours of Jan 12, a vote of confidence was held in the PA in which Elahi managed to secure 186 votes.
Two PTI MPAs, Amer Chandia from Rahim Yar Khan and Ammar Yasir from Chakwal, were transported to Lahore late on Wednesday night, enabling the ruling coalition to somehow touch the magical figure of 186.
On the other hand, the opposition boycotted the voting process alleging the speaker did not allow them to appoint polling agents for a ‘fair count’ of those who were voting for Elahi.