Legal discourse: Are Elahi’s hands tied after court pledge?

LAHORE:

 

After the reins of the Punjab government were handed back to Pervaiz Elahi with an assurance that the provincial assembly will not be dissolved, critical questions and conversations about the legality of such an undertaking are being echoed in the legal fraternity, with many arguing that it was not incumbent upon the provincial chief to comply with the commitment.

The Lahore High Court’s intervention last week had brought down the political temperature just as the PTI-PML-Q alliance seemed poised to go ahead with its nuclear option. The political capital was cast back to square one – at least until the next hearing on Jan 11.

However, lawyers are divided on the question of whether the Punjab Assembly could still be dissolved despite the submission of the undertaking or could the court make such a demand in the first place.

As for the first question – that whether CM can exercise his powers to scuttle the assembly – a section of the legal community said Elahi could dissolve the assembly despite the submission of the undertaking while some reckoned the undertaking barred him from taking any such action.

Some prominent lawyers said the demand for the undertaking was premised on the wisdom that a pledge could avoid further political crises. However, some claimed the undertaking does nothing to stop anyone from exercising a constitutional right, terming it an act “above the constitution and misuse of authority”.

PPP’s former governor Punjab Sardar Latif Khan Khosa termed the undertaking “an arrangement”, reckoning that the court did so out of the anticipation that the petition could have become infructuous in case the chief minister went ahead to dissolve the legislature after the court sets aside the governor’s orders.

However, he pointed out there was no such provision through which the demand could be made for the submission of the undertaking. “The court just did it to avoid political crises,” he maintained.

‘No constitutional standing’

On the other hand, PPP’s stalwart Barrister Aitzaz Ahsan said the undertaking had no constitutional status, emphasising that no one could be kept from exercising his/her constitutional right through such an undertaking.

Quoting Nawaz Sharif’s case wherein his young brother Shehbaz Sharif had to submit an undertaking, he recalled that neither the Supreme Court nor the Lahore High Court took notice of that and followed through.

“Neither Shehbaz Sharif was summoned by any court nor was he even asked about where his brother Nawaz Sharif had vanished,” he said, adding that the constitution empowered the chief minister to dissolve the assembly.

He said it does not matter whether or not the undertaking had been submitted and added that the chief minister still had the right to dissolve the assembly.

‘Misuse of power’

Lawyer Azhar Siddique also echoed Aitzaz Ahsan and said that the LHC’s unusual demand was tantamount to misuse of power.

He stressed there was no provision through which the court could ask Elahi to submit the undertaking. “Dissolving assembly is the constitutional right of the CM Punjab so how he could be deprived of that,” he added.

“The vote of confidence itself does not impose a such condition, the assembly could be dissolved even on the same day when the vote of confidence landed in the assembly,” he claimed.

Siddique further underscored that the constitution protected the CM Punjab.
Commenting on CM Elahi’s compliance with the court’s orders, the lawyer said that CM Punjab should have never submitted the undertaking before the court.

However, former Attorney General of Pakistan (AGP) Ashtar Ausaf Ali said the court had the right to ask the CM Punjab to provide the undertaking.

He said it was an interim relief given to the PTI and the decision has to come on the pending petition. He added that the court has to examine whether or not the orders of the governor of Punjab were passed legally or illegally.

"So the court I think has bound PTI not to do anything till the fate of this petition is decided. The track record is not so good either. Therefore, the court asked PTI to submit the undertaking to avoid repetition of past events and further crisis,” he explained.

LHC’s order

On December 23, Lahore High Court’s five-member bench headed by Justice Abid Aziz Sheikh had restored the Chief Minister Punjab Ch. Pervez Elahi and his cabinet after the court was ensured by the CM’s undertaking that he will not dissolve the Punjab Assembly.

CM Punjab Elahi in his undertaking has stated that “I Chaudhry Parvez Elahi, Chief Minister Punjab, undertake that if the Governor’s order is suspended and the Chief Minister and Cabinet restored to its original position, I shall not advise the Governor to dissolve the Assembly till the next date of hearing”.

However, the court ordered that the operation of impugned orders of the governor of Punjab shall be held in abeyance till the next date of hearing (January 11) and this order will not preclude the petitioner from taking the vote of confidence on his own accord.