PESHAWAR: A lawyer moved the Peshawar High Court here on Tuesday against the appointment of caretaker Khyber Pakhtunkhwa Chief Minister and his cabinet insisting the governor’s act was unconstitutional and illegal.

Advocate Tajamul Shah filed a petition requesting the court to declare that the Nov 12, 2023,notificationby the provincial governor to appoint retired Justice Syed Arshad Hussain as the CM as well as the subsequent appointment of the caretaker cabinet members were unconstitutional and illegal.

He also prayed the court to strike down the acts of the caretaker CM and his cabinet after their appointment by declaring them against the law.

The petitioner also sought an interim relief saying until the final disposal of the petition, the impugned notification may be suspended and the caretaker chief minister and his cabinet may be restrained from exercising official powers.

Petitioner claims governor’s act violated Constitution

The petition is filed through senior lawyers Wali Khan Afridi and Shah Faisal Ilyas and has caretaker chief minister Arshad Hussain Shah, all members of the provincial cabinet, provincial advocate general, attorney general for Pakistan, provincial law secretary, Election Commission of Pakistan through its secretary, ex-chief minister Mehmood Khan and ex-opposition leader Akram Khan Durrani as respondents.

The petitioner said that 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.

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

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

“In an utter violation of the constitutional provisions of Article 224 and 224-A, two ordinary men, Mehmood Khan and Akram Khan 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 ‘unconstitutional’ chief minister after taking oath formed his provincial cabinet in an unconstitutional manner. Nowadays, they’re running the affairs of the province without any legal backing,” he insisted.

The petitioner said 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.

He added that those appointments were not tenable as they violated the Constitution.

The petitioner 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.

He added that the jurisdiction assumed by former chief minister Mahmood Khan and former leader of the opposition Akram Khan Durrani was based on a political agenda and was not “sustainable” in the eyes of the law.

Published in Dawn, November 15th, 2023