The Lahore High Court restored Chaudhry Pervez Elahi as the provincial chief minister on Friday after getting assurance from the Pakistan Muslim League-Q (PML-Q) leader that he would not dissolve the Punjab Assembly.
Headed by Justice Abid Aziz Sheikh, a five-member bench heard the petition filed by Elahi challenging Governor Punjab Balighur Rehman’s act of de-notifying him as the provincial chief minister.
Announcing its orders, the court also reinstated the Punjab cabinet after the PTI leader submitted an undertaking that he would not dissolve the provincial assembly until January 11.
The court adjourned its hearing until January 11.
In the wee hours of Friday, Rehman had de-notified CM Elahi for failing to take a vote of confidence from the provincial assembly on Wednesday, December 21, on his order.
A notification issued by the Governor House after midnight had said that Chief Minister Elahi ceased to hold the office immediately while the provincial cabinet stood dissolved.
However, it added that Elahi will continue under Article 133 of the Constitution until a new chief minister was elected by the provincial assembly.
Judge recuses himself
A five-member bench headed by Justice Abid Aziz Sheikh was dissolved hours after being constituted today by the LHC chief justice to hear Elahi’s petition.
Justice Sheikh said that Justice Farooq Haider, who was part of the bench, recused himself from hearing the case as he has been the PML-Q leader's counsel in different cases.
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As per reports, the case file was then sent to the LHC chief justice once again so that a new bench can be constituted.
It is pertinent to note that the petitioner's counsel has requested the court to constitute a bench on the plea on urgent basis.
In the plea filed today, Elahi has requested to set aside the above order and requested to declare the Punjab Assembly’s session summoned by the governor on Wednesday unlawful.
The petition stated: "It may kindly be declared that the petitioner does not cease to hold his office as chief minister of Punjab and the dissolution of the provincial cabinet in the impugned order may kindly be declared unlawful."
Elahi filed the petition through advocates barrister Syed Ali Zafar and Amir Saeed Rawn contending that "two impugned orders passed by the respondent Governor of Punjab – one on December 19, 2022, wherein the governor had summoned the House for December 21, requiring CM Elahi to obtain a vote of confidence, and the second one on December 22, 2022, wherein the CM was de-notified over his failure for not obtaining the vote of confidence, are unlawful and unconstitutional."
It added that the impugned order issued on December 19, 2022, summoning the session of the Punjab Assembly for a vote of confidence is unlawful for the following reasons:
(1) Session of the Provincial Assembly is summoned either by: (a) The Governor under Article 109 of the Constitution (session having been summoned by the Governor is required to be prorogued only by the Governor); or (b) The Speaker under Article 54(3) read with Article 127 of the Constitution on a requisition by the members of the Assembly (session having been summoned by the Speaker is required to be prorogued only by the Speaker).
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(2) Effect of summoning and prorogation order by the Governor or, as the case may be, the Speaker has to be notified in the official gazette by the Secretary Assembly under rules 3 and 4 of the Rules of Procedure of the Provincial Assembly of the Punjab 1997.
(3) Assembly is already in session summoned by the Speaker under Article 54(3) read with Article 127 of the Constitution, which was notified by the Secretary Assembly under Rule 3 of the Rules of Procedures of Provincial Assembly of the Punjab 1997. The said session is in progress and may only be prorogued by the Speaker.
(4) During the currency of a session having been summoned by the Speaker, a new session cannot be summoned by the Governor until and unless the ongoing session is prorogued by the Speaker.
(5) As held by a three-member bench of the LHC in Manzoor Ahmad Wattoo v Federation of Pakistan, PLD 1997 Lahore 38, the question of confidence in the Chief Minister in terms of Article 130 (7) of the Constitution can be determined only in a session which is specially summoned for this purpose.
(6) Governor, earlier, vide a notification (41st Session) issued on June 14, 2022, summoned the 41st Session of the Assembly at Aiwan-e-Iqbal, Edgerton Road, Lahore, however, the said session was never prorogued by the Governor. That being the case, the Governor is not empowered to summon the session requiring the Chief Minister to obtain a vote of confidence.
The petitioner further added that "without prejudice to the unconstitutionality of the Respondent (governor of Punjab)’s act of summoning the session of the Punjab Assembly during the already ongoing session, it is respectfully submitted that the respondent governor neither has the appointing authority of the petitioner nor has the power to remove the petitioner, and there is no constitutional provision enabling the governor Punjab to pass the impugned order on December 22, 2022, and declaring that the petitioner ceases to hold his office of Chief Minister Punjab."
It maintained that the impugned order passed by the governor is not sustainable as the resolution of vote of no confidence moved by the 20 per cent is pending before the Provincial Assembly, and the order would make the resolution infructuous which would undermine the right of members of the assembly regarding the vote of no confidence against the petitioner.
"The order passed by the governor along with being violative of the fundamental rights of the members of the Provincial Assembly of Punjab, is also violative of the fundamental right of the citizens and residents of the Province of Punjab as their province is being deprived of the governance by the duly elected Chief Minister," read the petition.