The emergency imposed in Khyber Pakhtunkhwa (KP) on Sunday follows escalating tensions between the Pakistan Muslim League-Nawaz (PML-N)-led federal government and the Pakistan Tehreek-e-Insaf (PTI)-led provincial administration. The two sides have clashed over several issues, particularly counterterrorism policy, which both cited as a key factor behind the collapse of negotiations held on October 3.
Following the imposition of governor’s rule, KP Governor Faisal Karim Kundi has assumed responsibility for administering the province on behalf of the federal government. An 11-member technocratic KP Advisory Council has been established to assist him. The federal government has also authorised the deployment of Pakistan Army troops and assets in the province in aid of civil power.
Advocate Shah Faisal Ilyas filed a petition on behalf of PTI Chairman Barrister Gohar Ali Khan, challenging the proclamation of emergency before the Peshawar High Court (PHC).
The petitioner requested the court to declare the October 11 proclamation unconstitutional, unlawful, issued without jurisdiction and motivated by malice. He also asked the court to set aside the proclamation and declare it to have no legal effect.
Gohar is represented by a legal team comprising Barrister Sameer Khosa, Salman Akram Raja, Ali Zaman, Sardar Haseeb Ahmad and Zainab Shahid.
Filed under Article 199 of the Constitution, which deals with the jurisdiction of high courts, the petition names the Federation of Pakistan, represented through the secretaries of the Cabinet Division, Law Ministry, Interior Ministry and Defence Ministry; the KP government; Governor Faisal Karim Kundi; the speaker of the KP Assembly; and the secretary of the provincial Home and Tribal Affairs Department as respondents.
Former KP chief minister Sohail Afridi, whose government ceased to function following the imposition of governor’s rule, has also been included as a pro forma respondent.
Gohar has challenged the constitutionality and legality of the October 11 emergency proclamation, the order authorising the deployment of army personnel in KP, and all subsequent executive orders, notifications and bodies established under the proclamation.
These include the formation of the KP Advisory Council, the establishment of administrative structures under the emergency measures, and the removal of Afridi from office as chief minister.
Afridi and several members of his cabinet were taken into preventive custody shortly after the imposition of the emergency and governor’s rule, officials confirmed on Monday.
The petition specifically challenges Paragraph 3 of the proclamation, which directs the KP chief minister and provincial ministers to cease holding office. Gohar has asked the PHC to declare the provision unconstitutional and in violation of fundamental rights protected under Articles 4, 9, 17(2), 25 and 130 of the Constitution.
He has also sought an order restoring Afridi as the lawful chief minister of KP, along with his provincial cabinet, and reinstating their executive powers under Article 130.
The petition challenges Paragraph 2 of the proclamation, which transfers the legislative powers of the KP Assembly to Parliament. Gohar argues that such a transfer cannot take place without a prior resolution passed by the provincial assembly, as required under Article 232(1) of the Constitution.
He has asked the court to declare the provision void from the outset and an unconstitutional infringement of provincial autonomy.
The petitioner has further requested the PHC to restrain the federal government from introducing, considering or enacting provincial legislation concerning KP in Parliament.
The plea also seeks the annulment or permanent suspension of all executive orders, notifications, actions and administrative bodies established under the proclamation.
These include the 11-member KP Advisory Council headed by Governor Kundi, the proposed Area Development Secretariat (ADS) covering 12 districts, and the removal of the provincial advocate general and any purported appointment of a replacement.
Gohar has also challenged the October 11 order authorising the deployment of Pakistan Army troops in KP under Article 245 of the Constitution.
He has asked the court to declare the deployment order unconstitutional, arguing that it cannot replace or bypass the province’s civilian executive and constitutional administration. The petition further maintains that the deployment could not lawfully be ordered without a valid requisition from the provincial government headed by Afridi.
The PTI chairman has requested the federal government and the KP governor to produce the complete record and supporting material allegedly used to justify the emergency proclamation and subsequent measures.
This includes Governor Kundi’s report and the summary submitted to the federal cabinet before the decision was taken.
The petition also seeks the immediate release of Afridi and members of the provincial cabinet and assembly who are allegedly being held in executive or preventive detention.
The petitioner has asked the PHC to restrain the respondents from obstructing the functioning of the Chief Minister’s Secretariat, the Civil Secretariat and the KP Assembly.
He has also sought suspension of the notification establishing the Area Development Secretariat and requested that its administrator and additional chief secretary be barred from exercising parallel administrative or law-enforcement powers in the 12 designated districts.
Additionally, Gohar has asked the court to prevent the federal government from introducing, considering or passing legislation relating to the Provincial Legislative List or the affairs of KP in Parliament.
The petition requests that Afridi be produced before the court and that the authorities be restrained from placing him or members of his cabinet in preventive detention or transferring them outside the court’s jurisdiction.
It also calls for the removal of containers, barricades and other blockades surrounding the KP Assembly and Chief Minister’s Secretariat to ensure elected representatives have unobstructed access to the premises.
The petitioner has further requested any other relief or directions the court considers appropriate.
In its grounds, the petition argues that imposing an emergency under Article 232(1) requires a prior resolution from the provincial assembly concerned.
“No such resolution was ever moved, debated, or passed by the provincial assembly of Khyber Pakhtunkhwa,” Gohar contended.
He argued that, without this constitutional prerequisite, the federal government lacked the authority to advise or issue the contested proclamation, rendering the entire process unlawful and without jurisdiction.
The petition further maintains that bypassing the elected provincial assembly over alleged internal disturbances violates Pakistan’s federal structure under Article 1, the principles of democracy and provincial autonomy reflected in the Objectives Resolution under Article 2A, and the province’s legislative authority under Article 142.
On these grounds, Gohar argues that the proclamation violates Article 232(1), read alongside Articles 1, 2A and 142, and should therefore be set aside.
He also contends that the proclamation does not identify a grave emergency arising from war or external aggression, as stipulated in Article 232(1). According to the petition, neither Pakistan nor KP faces such a threat.
The petitioner maintains that the government’s reliance on internal disturbances is not supported by objective evidence presented in the proclamation.
The petition also questions why an emergency was not declared in Balochistan despite what it describes as a high number of terrorist incidents in the province.
It argues that the different treatment of the two provinces demonstrates that the security justification for imposing emergency measures in KP is being applied selectively and violates Article 25, which guarantees equality before the law.
Gohar alleges that the measures were taken because KP is governed by the opposition and because the federal government has rejected PTI’s demands concerning its founder, Imran Khan.
The petition further argues that no emergency was imposed anywhere in Pakistan even during the height of terrorist violence between 2007 and 2015.
Gohar has also challenged the invocation of Article 234, describing it as lacking lawful authority, jurisdictional basis and being tainted by legal malice.
