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Saturday May 18, 2024

Governor can determine trust vote date during ongoing session: LHC

LHC resumes hearing Parvez Elahi's plea against his denotification orders by Punjab governor

By Dua Mirza & Shahid Hussain
January 11, 2023
Punjab Chief Minister Chaudhry Parvez Elahi arrives to attend an assembly session in Lahore on April 3, 2022. — Online/ file
Punjab Chief Minister Chaudhry Parvez Elahi arrives to attend an assembly session in Lahore on April 3, 2022. — Online/ file

The governor can determine the date for a trust vote being sought from a chief minister during an ongoing session, the Lahore High Court (LHC) said as it resumed on Wednesday hearing Punjab Chief Minister Parvez Elahi's plea against Governor Balighur Rehman’s orders to de-notify Elahi as the chief minister.

Elahi's plea was taken up by a five-member bench of the LHC, headed by Justice Abid Aziz Shaikh. Justices Chaudhry Muhammad Iqbal, Tariq Saleem Sheikh, Asim Hafeez and Muzamil Akhtar Shabir are part of the bench.

The governor had denotified CM Elahi last month after he failed to take a vote of confidence from the Punjab Assembly despite the passage of several hours.

At the last hearing on December 23, the bench had restored the provincial cabinet and Elahi as the CM after he assured the court that he would not dissolve the assembly once he regains control of the office.

Notices had been issued by the court to all parties and they were summoned to court on January 11 (today).

Today's hearing

At the start of today's hearing, Justice Abid Aziz told Barrister Ali Zafar that the matter under discussion had yet to be resolved.

Justice Abid Aziz stated that the governor can ask a chief minister to take a vote of confidence from the assembly.

He asked Elahi’s counsel if he wants the case to be decided on merit or if his client is ready to take a trust vote.

“A decision has to be made via a floor test,” added Justice Abid.

At this, Barrister Zafar responded that his client became the chief minister by taking votes in the assembly.

Upon hearing this, Justice Hafeez remarked that the chief minister should always have the support of 186 members.

On the other hand, Attorney General for Pakistan Mansoor Awan emphasised that it was mandatory for the CM to take a vote of confidence on the governor’s order.

However, Justice Hafeez remarked that neither parties are willing to speak about the number game in the assembly.

The AGP once again emphasised that the governor had the power to ask the CM to take a vote of confidence. He added that the matter has also gone beyond a debate over the need for a reasonable time to conduct voting.

At this, Elahi’s counsel told the bench that the AGP had not received anything in writing.

“No one had stopped the chief minister from taking a vote of confidence. Why is there a need to have anything in writing?” responded the AGP.

After hearing both lawyers, Justice Abid remarked that if there is no consensus between the parties then they would decide the case on merit.

In his arguments, Zafar told the bench that when the governor removed the Punjab chief minister and the cabinet, the opposition took back the no-confidence motion. 

The counsel added that the Pakistan Tehreek-e-Insaf and PML-Q were ready for the motion. 

"They are trying to play a political game. This is tantamount to fraud with the Constitution," said Zafar.

Moving on, the lawyer agreed with the bench that a governor can ask a chief minister to take a vote of confidence but contested that it was the speaker’s prerogative to give a date for the vote.

“Even the chief minister cannot ask the speaker to take a vote of confidence,” said Zafar. He urged that the chief minister cannot be punished for the speaker’s failure to summon a session.

At this point, Justice Hafeez intervened and remarked: “Under the constitution governor and speaker are unbiased. Over here the speaker and governor are acting as spokespersons of political parties.”

Furthermore, on Zafar’s contention over the speaker’s prerogative to determine a date of the vote, the court observed that the governor can determine a date of the vote of confidence during ongoing session.

“If this cannot happen then the chief minister will say that he wont be taking a vote of confidence as a session is ongoing,” observed Justice Abid. He added that the speaker could also give a separate date.

Upon the speaker’s mention, Punjab Assembly Speaker Sibtain Khan’s lawyer intervened and told the bench that his client had given a ruling on the issue.

However, Justice Abid told the lawyer that the court did not have the ruling and will hear the speaker’s point of view as well. 

Moving on, Zafar told the court that his client has no issues with taking a vote of confidence but it was a matter for “principle”.

The court then adjourned the hearing till tomorrow (Thursday).

Parvez Elahi's petition

In his petition, a copy of which is available with The News, Elahi had appealed to the court to declare the governor’s move denotifying him as chief minister "illegal".

The court had been told that Punjab Assembly Speaker Sibtain Khan had been asked to summon a session for a vote of confidence. The plea had stated that the speaker did not summon the session as one was already underway.

It had been argued that the governor’s order over summoning a session was illegal under the Constitution and Rules of Procedure of the Provincial Assembly of the Punjab 1997.

“No action can be taken against any chief minister over [the] speaker’s actions,” the petition had maintained.

“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 read.

Governor Rehman was made the respondent in the case via his principal secretary and chief secretary of the province.

The petition also highlighted that Rehman’s order was “not sustainable because it has been passed due to grave misconstruction of the facts”.

“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,” the petition read.