PTI Chairman Barrister Gohar Challenges Emergency and Governor’s Rule in PHC
PTI Chairman Barrister Gohar Ali Khan on Wednesday approached the Peshawar High Court (PHC), challenging the imposition of emergency and governor’s rule in Khyber Pakhtunkhwa. He asked the court to rule that the decision was unconstitutional.
The emergency was declared on Sunday amid escalating tensions between the PML-N-led federal government and the PTI-led provincial administration in KP. Disagreements between the Centre and the opposition have persisted over several matters, particularly counterterrorism policy, which both sides identified as a key factor behind the collapse of their October 3 negotiations.
Governor Faisal Karim Kundi has taken charge of administering the province on behalf of the federal government. An 11-member technocratic KP Advisory Council has also been established to assist him. In addition, the Centre has approved the deployment of Pakistan Army personnel and resources in KP to support civil power.
The petition against the emergency proclamation was filed on behalf of the PTI chairman by Advocate Shah Faisal Ilyas. A copy of the petition is available with Dawn.
In his plea, Gohar asked the PHC to declare the October 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 requested that the court annul it.
A team of lawyers is representing Barrister Gohar, including Barrister Sameer Khosa, Salman Akram Raja, Ali Zaman, Sardar Haseeb Ahmad and Zainab Shahid.
The petition was submitted under Article 199 of the Constitution of Pakistan, which deals with the jurisdiction of high courts. Those named as respondents include the Federation of Pakistan, represented through the secretaries of the Cabinet, Law Ministry, Interior Ministry, and Defence Ministry; the province of KP; Governor Kundi; the KP Assembly speaker; and the secretary of the KP Home and Tribal Affairs Department.
Sohail Afridi, whose position as provincial chief minister became non-functional following the imposition of governor’s rule, was also included as a pro forma respondent.
Gohar contested the “constitutionality, legality and vires” of the October 11 emergency proclamation, the order authorising the deployment of army troops in the province, and “all consequential and derivative executive orders, notifications, and bodies” established as a result. These included the formation of the KP Advisory Council and the “arbitrary” detention and removal of Afridi from the chief minister’s office.
Afridi and several members of his cabinet were placed in preventive custody shortly after the emergency and governor’s rule were imposed, officials confirmed on Monday.
The petitioner also asked the PHC to declare Paragraph (3) of the proclamation invalid. This provision purported to require the KP chief minister and provincial ministers to leave office. According to the petition, the provision was “illegal, ultra vires the Constitution, and in violation of the fundamental rights guaranteed under Articles 4, 9, 17(2), 25 and 130”.
Gohar further requested an order for Afridi’s immediate constitutional reinstatement as the legitimate chief minister of KP, along with his provincial cabinet, restoring their full executive authority under Article 130 of the Constitution, which concerns the provincial cabinet.
The petition also called on the PHC to strike down Paragraph (2) of the proclamation. This clause transferred the legislative authority of the KP Assembly to Parliament without a prior resolution from the provincial assembly, as required by Article 232(1). The petitioner described the move as “void ab initio and an unconstitutional usurpation of provincial autonomy”.
Additionally, the plea asked the court to prevent the federal government from “tabling, entertaining, or enacting any provincial legislative business concerning Khyber Pakhtunkhwa in Parliament”.
Finally, the petitioner urged the PHC to declare unlawful and unconstitutional, and to annul, dissolve or permanently prohibit, all executive orders, notifications, actions and bodies established “pursuant to or under the colour of” the emergency proclamation.
The measures challenged by the petitioner included the formation of the 11-member KP Advisory Council under Governor Kundi; the creation of the “Area Development Secretariat” (ADS) in 12 districts across the province; and the removal of the KP advocate general, along with the purported appointment of a successor.
The petitioner also contested the October 11 order authorising the deployment of army personnel under Article 245. He asked the court to declare the order unconstitutional, arguing that it could not “supplant or bypass the civilian executive and constitutional administration” of the province. He further maintained that the provision could not be invoked without a lawful request from the provincial government led by Afridi.
Barrister Gohar requested that the respondents, including the federal government and the KP governor, be directed to immediately disclose and submit “the entire record and so-called ‘objective material’” before the PHC. This included Governor Kundi’s report and the federal cabinet’s summary, which were allegedly used as the basis for the emergency proclamation and subsequent orders.
He also sought court directions for the immediate release of Afridi and members of the KP cabinet and assembly from “unlawful executive or preventive detention”.
Furthermore, the petition asked the court to permanently prohibit the respondents from “obstructing, barricading, or creating physical impediments” that could interfere with the lawful operations of the CM’s Secretariat, Civil Secretariat and KP Assembly.
The plea also sought suspension of the notification establishing the ADS. It requested that the ADS administrator and additional chief secretary be prevented from exercising parallel administrative or law enforcement authority in the 12 designated districts. In addition, it urged the court to stop the federal government from “tabling, considering, or passing” legislative measures or bills concerning the Provincial Legislative List or the affairs of KP in Parliament.
The petitioner also asked the PHC to order the immediate production of Afridi before the court and restrain the authorities from placing him or any provincial cabinet members in preventive detention or transferring them beyond the court’s jurisdiction.
Another request called for local officials and authorities to promptly remove containers, barricades and other blockades surrounding the KP Assembly Secretariat and CM’s Secretariat, ensuring that all elected representatives could access the premises without obstruction. The petition also sought “any other relief, order or direction” that the court considered appropriate in the circumstances.
As one of the grounds for challenging the proclamation, the PTI chairman argued that its issuance required the “indispensable condition precedent of a prior resolution passed by the provincial assembly of that province”.
“No such resolution was ever moved, debated, or passed by the provincial assembly of Khyber Pakhtunkhwa,” he contended. “In the absence of this mandatory constitutional prerequisite, the federal government had no constitutional competence to advise or issue the impugned proclamation under Article 232(1), rendering the entire exercise coram non judice.”
The petition argued that by bypassing the elected provincial assembly unilaterally over an alleged internal disturbance, the proclamation breached “the federal structure guaranteed under Article 1, the principles of democracy and provincial autonomy enshrined in the Objectives Resolution (Article 2A), and the legislative domain of the province recognised by Article 142 of the Constitution”.
It further stated that the proclamation was “ultra vires the proviso to Article 232(1) read with Article 1, 2A, and 142 of the Constitution” and should therefore be annulled.
Gohar also argued that the proclamation did not refer to any “grave emergency” caused by war or external aggression, as stipulated in Article 232(1). He maintained that the facts would not support such a claim, asserting that neither Pakistan as a whole nor Khyber Pakhtunkhwa was facing a grave emergency arising from an ongoing war or external aggression, and that there was no known threat of such circumstances.
The petition also maintained that the federal government’s reliance on “internal disturbances” in the province should be assessed against clear, demonstrable and objective criteria, which it claimed were “entirely absent” from the proclamation.
“Despite an unfortunately high number of incidents of terrorist violence in the Balochistan province, no declaration of emergency has been declared or even contemplated,” it highlighted.
“This clearly demonstrates that the terrorism and security pretext in Khyber Pakhtunkhwa is nothing but a colourable device, deployed in sheer violation of Article 25.”
The petition alleged that the security justification had been used specifically because the provincial government in KP was formed by the opposition, while the federal government did not accept its demands concerning PTI founder Imran Khan.
It further argued that the federal government’s position was contradicted by the fact that even during the height of terrorist activity between 2007 and 2015, “no emergency was ever imposed anywhere inside Pakistan”.
Gohar also maintained that invoking Article 234 was “without lawful authority, tainted with malice in law, and devoid of jurisdictional basis”.
