LHC didn’t entertain petition asking questions now raised by Justice Minallah

ISLAMABAD: The questions raised by Supreme Court’s Justice Athar Minallah about the legality of dissolution of provincial assemblies also formed the basis of a petition filed by an eminent lawyer in Lahore High Court (LHC) but the court didn’t entertain it due to want of a certified copy of the summary signed by Punjab chief minister.

Barrister Salman Khalid Chima had filed a couple of petitions, one he filed shortly before the assembly was dissolved and another after the dissolution. The former was not entertained because it was premature to conclude that the presumed plan would translate into action and the latter was returned with an objection that the petitioner didn’t have a certified copy of the summary signed by the Punjab CM, notwithstanding the fact the summary was widely in circulation on social media and electronic media.

Although, the constitutional questions -- whether an assembly can be dissolved at the directive of an individual (Imran Khan) and why not chief ministers had given specific reasons culminating in the dissolution -- stirred legal debate after the remarks of Justice Minallah yet Barrister Chima raised these questions earlier through his petitions without getting the attention they deserved. A highly qualified lawyer, Barrister Chima has studied law in top three universities: Harvard, Oxford and Cambridge.

In a petition filed before the dissolution of the Punjab Assembly, Barrister Chima argued that Imran Khan who didn’t have any constitutional authority was dictating Chaudhry Pervaiz Elahi, Punjab CM, to dissolve the assembly when the latter had declared in different media interviews that it wouldn’t be in the best interests of the province to do that.

He attached press clippings of interviews to substantiate his point. “As the decision to dissolve the assembly affects the public at large, it must be made after proper weighing of pros and cons. It is to be based on prioritising the public interest instead of being based on personal benefit,” he argued.

Seeking to dissolve the assembly to force an election is not a national or structured use of the discretion, he continued. This unstructured and whimsical exercise of discretion is in violation of Punjab CM’s constitutional duties and is, therefore, unlawful, Barrister Chima pointed out. “It is clear from the Respondent No2’s (Pervaiz Elahi) public statements that his own view is that the dissolution of the assembly is not advisable. However, despite this, he is progressing to dissolve the assembly on the Respondent No3’s (Imran Khan) direction. This evidences that the Respondent No2 is not following his own independent assessment and is exercising his constitutional powers based on external dictation,” he argued.

He also gave references of two orders of Balochistan High Court in 1989 and Lahore High Court in 1993. In the former case, Balochistan Assembly was dissolved on the advice of the then CM Zafarullah Khan Jamali and it was restored after one and a half months by Balochistan High Court. The BHC held (PLD 1989 Quetta 25) that “the dissolution of Assembly which has been elected after going through the election process” does not entail “a pure political question” as “a vested right has accrued to the members of the provincial assembly, as well as the electorates” and it would amount to an “erosion of their civil rights [if] an important organ of the state was demolished.”

It was further held: “Under Article 107 of the Constitution, the duration of a provincial assembly is five years. Therefore, dissolution of a provincial assembly before its constitutional period must be justified on definite reasons provided by the Constitution. Holding an election is a cumbersome job. A lot of expenditure is involved. The entire government machinery is geared up to complete the election process, therefore, extraordinary powers of dissolution of the assembly, must be exercised carefully, faithfully and in accordance with the provisions of the Constitution.”

Another case was related to the dissolution of Punjab Assembly in 1993 by Governor Altaf Hussain on the advice of the Punjab CM Main Manzoor Wattoo. Incidentally, Chaudhry Pervaiz Elahi had then challenged this dissolution in Lahore High Court being the opposition leader. The court while restoring the assembly held (PLD 1993 Lahore 595): “We are not impressed with the contention that to advise dissolution of the assembly is [the] absolute, unfettered and unbridled prerogative of the chief minister even if it is mala fide. In law, no right, however high, can be claimed to be absolute, unguided and arbitrary, so as to defeat the purpose of law and constitution. In an Islamic State the sovereignty belongs to Allah Almighty and is a sacred trust with those to whom it has been entrusted as trustees. They must discharge their functions and exercise their powers within the limits prescribed by Allah Almighty and for the good and welfare of people in accordance with the constitution and the law. The constitutional provisions, when read as a whole, lead to the indubitable conclusion that any such breach of trust is open to judicial scrutiny, by the superior courts to that limited extent.”

Due to the foregoing, Barrister Chima prayed that the Respondent No2 (CM Pervaiz Elahi) be directed to “exercise his discretion in a structured manner with an independent mind as is set out by the law and not on the instructions of Respondent No3 (Imran Khan).” He also sought the court’s directives to restrict him from exercising his discretion arbitrarily and whimsically, which means that he is not to dissolve the assembly as long as he himself is of the view that doing so is against the best interest of the province and/or would be against the wishes of the majority of MPAs. However, the court didn’t entertain the petition considering it premature in absence of an impugned order (of dissolution). Again, when the petition was filed after the order was issued, the court didn’t take it up as the petitioner couldn’t produce the certified copy of the order.