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.

Advocate Shah Faisal Ilyas submitted the petition on behalf of the PTI chairman.

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 Faisal Karim Kundi; the speaker of the KP Assembly, and the secretary of the KP Home and Tribal Affairs Department as respondents.

Sohail Afridi, the now non-functional chief minister of the province, was also named as a proforma respondent.

Barrister Gohar challenged the “constitutionality, legality and vires” of the Oct 11 Proclamation of Emergency in the province, the order deploying the Armed Forces to the province, and “all consequential and derivative executive orders, notifications, and bodies” constituted as a result, including the establishment of an 11-member KP Advisory Council and the “arbitrary” detention and unseating of CM Afridi.

The petitioner sought further declaration from the PHC that Paragraph (3) of the impugned proclamation, which purported to direct that the KP chief minister 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 Sohail Afridi as the lawful chief minister of KP, along with his provincial cabinet, with full executive powers vested under Article 130 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”; and 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 impugned proclamation.

These included the constitution of the KP Advisory Council of 11 members, headed by Governor Kundi; the establishment of the “Area Development Secretariat” (ADS) across the designated 12 districts of the province; and the unseating of the advocate general of KP and purported appointment of any replacement officer, and others.

The petitioner also challenged the order regarding the deployment of the army 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 Sohail Afridi, as well as all detained members of the KP Assembly and Cabinet 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 prayed that the respondents be directed to immediately produce the non-functional chief minister 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.

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