Two former chief ministers have approached the Supreme Court, seeking direction to restrain the caretaker chief ministers of Punjab and Khyber-Pakhtunkhwa from doing official work and that the top court should regulate day-to-day operations of the provinces till general elections are held and democratically-elected governments are installed.
In this regard, a constitutional petition was filed by Pervaiz Elahi and Mahmood Khan through Khawaja Tariq Rahim advocate two days ago.
Talking to The Express Tribune, a senior member of the legal team believes that the petition should not have filed as it might affect the hearing of the main case regarding holding of the Punjab Assembly election on May 14.
The petition contends that the caretaker chief ministers, after the period of 90 days, do not have any lawful authority to hold or to continue with their offices as per the Constitution. “Even otherwise trust cannot be reposed in them due to their acts of misfeasance and malfeasance, which is a subject matter of numerous other petitions pending before the superior courts,” it adds.
The petition states that all public functionaries and bodies, vested with constitutional and statutory powers, have to ensure that their powers are directed only to maintaining the rule of law situation and the Constitution as per Article 5.
“The same is lacking herein.”
"The blatant violation of the Constitution has created a constitutional crisis of immense proportion which cannot be resolved by any state institution alone nor any provision of the Constitution provides an answer thereto. The Apex Court is the only institution as per the past precedents, as per its unique powers inter alia under Article 189 and 190 of the Constitution, to provide the relief.”
The PTI legal team, however, is in two minds over the issue.
The petition states that the constitutional calamity is being made worse by perpetual unlawful resistance by the respondent federal government and its ministries led by the prime minister; aided and assisted by the respondent ECP.
"The saga is evident in the various proceedings being pursued before this august court. The hostile and adverse, public and in chamber, venom being spit out by the members of the respondent Federal Government does not require any deliberation herein. They are in cahoots to frustrate the rule of the Constitution within the country despite the fact that they are bound by their oaths taken under the Constitution to uphold the rule of law.”
“The petitioners are aggrieved of the violation of their and citizens/voters of Punjab and K-P rights, fundamental and guaranteed, under the Constitution to be governed by a lawful government and not by usurpers who have no sanctity of their existence under the Constitution,” it adds.
The petition states that the existence and continuance as ostensible caretaker chief ministers, is a fraud on the Constitution; they are liable to be removed forthwith.
The petition states that caretaker governments in Punjab & KPK cannot continue to operate beyond the mandatory period of 90 days as stipulated in Art. 224 of the Constitution.
"The federal government by refusing to provide finances and expenditures to be incurred on the holding of elections to the provincial assemblies of Punjab & KPK is blatantly violating the mandatory provisions of the Constitution.
"The cabinet and the Prime Minister by refusing to sanction the funds on flimsy grounds can violate and defeat the provisions of the Constitution and are not liable to be dealt with in terms of Articles 5 and 6 of the Constitution.
"Since the Constitution does not entitle any extension in the tenure of the caretaker Governments, this Court in terms of Article 184(3) read with Article 187 is bound to act in a manner which would ensure the compliance with the Constitution as well as holding of fair and free elections in Punjab and K-P.
"Suitable actions and steps to deal with the Constitutional impasse occasioned by the failure of the Respondents (Federal Government) to hold the elections within 90 days and whether the continuation of the caretaker Governments in Punjab and Khyber Pakhtunkhwa would be valid and legal," says the petition.
Meanwhile, Advocate General Punjab Shan Gul believed that the caretaker government could continue until elected governments are formed.
He stated that the duration of the caretaker government was implicitly extended in the Haji Saifullah case. In the same manner, as has been done through the order passed in C.P. No. 05/2023 whereby the date of the election was taken forward to 14.5.2023.
"In 2013, SCMR 1205 at paragraph 15, it has been held that a caretaker government is put in place to run the affairs of the state during the interim period and which is till the return to power of a duly elected government. Therefore, the caretaker government remains in office during the currency of the entire interim period and till return to power of the duly elected government.”
“Even otherwise in 2008 when Mohtarma Benazir Bhutto lost her life the caretaker setup was allowed to function till a duly elected government was put in place,” he added.
“Also, it has now become a constitutional convention that the caretaker government stays in place till a duly elected government takes over,” he opined.
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