A Lahore High Court (LHC) judge observed on Friday that if the Punjab governor asked the chief minister to seek a vote of confidence from the provincial assembly, his orders should have been implemented.
The remarks were made by Justice Abid Aziz Shaikh who is heading the five-member bench that has taken up PML-Q leader Chaudhry Parvez Elahi’s plea challenging Punjab Governor Balighur Rehman’s de-notification orders.
The bench also includes Justices Chaudhry Muhammad Iqbal, Tariq Saleem Sheikh, Asim Hafeez and Muzamil Akhtar Shabir.
On Thursday night, the Punjab governor sprang into action and denotified Elahi as chief minister of the largest province in a bid to forestall ousted premier Imran Khan’s plan to dissolve the Punjab Assembly (PA).
In his order dated Dec 22, the governor said that since the chief minister had refrained from taking a vote of confidence at the appointed day and time, he ceased to hold the office. Rehman, however, asked Elahi to continue working as chief minister until his successor takes charge.
Earlier today, the PML-Q leader approached the court today, saying the move was “unconstitutional, unlawful and of no legal effect”
At the outset of the hearing today, Elahi’s lawyer Barrister Ali Zafar presented his arguments, saying that his client was elected as the chief minister on July 22.
“He got the required number of votes in the assembly but the then deputy speaker had removed 10 votes. The matter was then taken to the Supreme Court.
“The top court, in its verdict, had invalidated the deputy speaker’s decision and said that Parvez Elahi was, lawfully, the chief minister of Punjab,” he said.
Zafar contended that a chief minister could only be removed from the post through a no-confidence vote. “A [no-trust] motion can be tabled with the signatures of 20 MPAs.”
He stressed that a chief minister was elected by assembly members and could only be removed by them. “If the governor thinks that the chief minister has lost his majority, he can call for a vote of confidence and a separate session can be held for it.”
However, Zafar argued, the governor could not determine the day and time for the vote of confidence.
Here, the court asked that if a timeframe of three to seven days could be given for a vote of no-confidence, “then why not for a vote of confidence?”
Elahi’s counsel responded that there was a “procedure established for the vote of confidence under which members are given a notice”.
Here, the court asked if voting could take place on the same day the notices were issued.
“The speaker has the authority to issue notices and hold the voting on the same day,” Zafar replied.
He elaborated that if the speaker sets a day for the vote of confidence and the chief minister refuses to attend it, “only then can the governor pass orders”.
However, the lawyer argued that Elahi never objected to a vote of confidence. “The assembly has to be called by the speaker as the chief minister can not do the same. But when a session was not held, how can the governor issue orders?
“It is like two people are fighting but the third person is being punished.”
Here, Justice Sheikh observed: “If the governor has called for a vote of confidence, his orders should have been implemented.”
He said that the “entire business” of calling the assembly session for a vote of confidence could still be held, adding that the “crisis can end if a time for voting is given”.
“But this is only possible if the de-notification order is annulled,” Zafar argued.
To that, Justice Sheikh said that the court would decide on this matter according to the law.
At one point during the hearing, Zafar said that Punjab was the biggest province of the country and there were multiple projects underway in the Punjab cabinet. “If the chief minister stays, the cabinet would stay.”
However, the judge pointed out that the governor had instructed Elahi to stay in office until a new chief minister was elected.
Elahi’s petition
The petition filed by Elahi today, 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 precentum 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.
Change in bench after judge recuses
After the petition was filed, the court constituted a larger bench to hear the plea.
The bench was headed by Justice Abid Aziz Shaikh and comprised Justices Chaudhry Muhammad Iqbal, Tariq Saleem Sheikh, Farooq Haider and Muzamil Akhtar Shabir.
The bench was dissolved around an hour later when Justice Haider recused himself from hearing the case as the court took up the plea.
Justice Abid explained the reason behind Justice Haider’s decision, saying that he had been a counsel for the petitioner in the past.
“We have sent the case file to the [LHC] chief justice for the constitution of a new bench,” he added.
When Elahi’s lawyer requested that the hearing of the plea be scheduled for today, Justice Abid said this request would also be forwarded to LHC Chief Justice (CJ) Ameer Bhatti.
Later, the LHC CJ reconstituted the bench, replacing Justice Haider with Justice Asim Hafeez.
Crisis in Punjab
After Imran’s announcement of the assemblies’ dissolution, the coalition leaders had sprung into action to prevent Punjab Chief Minister Pervez Elahi from dissolving the Punjab Assembly.
In a double-edged move on Monday, 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 Wednesday, 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 differ 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 Thursday, 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, Mr 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, it remains to be seen whether the governor’s late-night order will hold the field or not.
