LAHORE: As Pakistan Tehreek-i-Insaf (PTI) urges the Supreme Court to remove the caretaker set-ups in Punjab and Khyber Pakhtunkhwa since their 90-day term has expired, the legal experts contacted by Dawn say the caretakers can stay till the return of the elected governments.

A caretaker regime only leaves office, in the opinion of lawyers, when the power is transferred to an elected government after its establishment and no time period has been specifically specified as governance cannot be left unattended.

In a letter to President Arif Alvi, PTI vice president Fawad Chaudhry argued the interim set-ups in both the provinces have completed their constitutional time period of 90 days on April 22.

He urged the president to ask the Supreme Court to take notice of the violation of the mandatory constitutional commands.

The president forwarded the letter to Prime Minister Shehbaz Sharif asking the latter to look into the matter raised by the PTI.

Through his chief ministers, PTI Chairman Imran Khan got the assemblies of Punjab and KP dissolved in January this year in a bid to force the coalition government of Pakistan Democratic Movement (PDM) in centre to hold snap polls in the two provinces or go for early general election.

In several instances, the Supreme Court and the higher courts ruled that a caretaker set-up can continue till the establishment of a regular government.

In a case of 1991 known as “Khwaja Ahmad Tariq Rahim versus Federation of Pakistan”, a Lahore High Court five-judge bench held that a caretaker government has to perform its functions with full responsibility until a permanent cabinet is formed.

Since the case was related to the caretaker prime minister, the bench ruled that the tenure of a caretaker prime minister is to last till induction into office of a regularly elected prime minister by a new assembly after the election.

The judgement of the high court was also upheld by a 12-judge bench of the Supreme Court in 1992.

Advocate General of Punjab Shan Gul told Dawn that the Supreme Court in 2013 held that a caretaker government is put in place to run affairs of the state during the interim period and which is till the return to power of a duly-elected government.

Therefore, he argues that the caretaker regime remains in office during the currency of the entire interim period and till the return of an elected government.

Besides many cases of 90s era, he refers to 2008 when former prime minister Benazir Bhutto was assassinated and the caretaker setup was allowed to function till a duly elected government was put in place.

Gul says the continuation in office of a caretaker regime does not run contrary to any explicit constitutional provision.

Advocate Malik Awais Khalid says Article 254 of the Constitution mandates that if any act is not done within a particular time as provided under the Constitution, the said act would not be invalid because of such reason alone.

He believes that the constitutional relaxation for the constitutional timelines will not upset the caretaker governments in Punjab and KP rather validate their functioning till it holds the general election.

Advocate Khurram Chughtai says the Supreme Court needs to decide any challenge to continuation of the caretakers in the two provinces with a larger bench not less than 12 keeping in view the 1992 decision in the Khwaja Ahmad Tariq Rahim case.

In his opinion, the caretakers can stay till the formation of the elected governments, however, he believes that a new interpretation of the constitutional provisions is required as this would be a “case of first impression” after the 18th Amendment.

He says the post amendment legislation provides a specific timeline for the caretaker governments.

A sitting law officer told Dawn that there were also some precedents from other countries like in 2010 as a result of a hung parliament in Belgium, the caretaker government continued for 500 days.

He said in 1996 in India, the tenure of a caretaker government was extended by legislative action until a new government could be formed.

In 2010 in Australia where, he said, the duration of a caretaker government was not specified, as a result of a hung parliament the tenure of the caretaker was extended till a new government could be formed but after obtaining a consensus of approval from all political parties.

In 2019 in Thailand, the caretaker government functioned beyond time without any extension in particular, he added.

Published in Dawn, April 25th, 2023

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