Retired Justice Arshad Hussain Shah was on Sunday appointed as the caretaker chief minister of Khyber Pakhtunkhwa, a day after ex-CM Azam Khan passed away following a brief illness.
The development came after former PTI leader Mahmood Khan, who was a constitutional consultee in the initial appointment of the caretaker chief minister, met opposition leader Akram Khan Durrani for consultation on the appointment of the new caretaker CM.
A notification issued after the meeting, a copy of which is available with Dawn.com, said Durrani and Mahmood had agreed to appoint Shah as the caretaker CM under clause 1(A) of Article 224 of the Constitution.
The same was subsequently sent to the KP governor, who later approved it.
On Saturday, KP Governor Haji Ghulam Ali had sent a letter to Mahmood and Durrani, inviting them to begin the consultation process under Article 224(1A) of the Constitution for the next chief minister’s appointment.
In separate letters, the governor had said he was under constitutional obligation to call upon them. He added that as per the Constitution, the process should be completed in three days.
Shah was appointed as the law minister in former CM Azam Khan’s cabinet earlier this year. Previously, he also served as the chief justice of Gilgit-Baltistan.
Legal conundrum
Azam Khan’s demise has stirred a debate as to how a new caretaker chief executive of the province would be appointed since there are no explicit constitutional provisions about procedures to be adopted in such a scenario.
Articles 224 and 224-A provide a mechanism for the initial appointment of a caretaker chief minister after the dissolution of a provincial assembly, but these provisions are silent about procedures to be adopted in case of the death or resignation of an incumbent.
Similarly, the Elections Act 2017 provides for the functions of a caretaker government but has no provision to deal with the present situation.
Some legal minds believe that the same mechanism that has been enshrined in Article 224 and Article 224-A can be adopted for the new appointment, but a former secretary of the Election Commission of Pakistan begs to differ.
According to Kanwar Dilshad, as the assemblies no longer exist, the Senate is empowered to decide in such an emergency.
“If Senate fails to agree on a name then the matter will be referred to the ECP,” Dilshad told reporters. If the leader of the house and the leader of opposition in the Senate failed to agree on a name, then the matter would be referred to the ECP.
The situation has turned further complicated as the then CM Mahmood Khan, who was a constitutional consultee in the initial appointment of the caretaker chief minister, has already left the former ruling party.
“This is an unprecedented case, as the slot of the caretaker chief minister has never before fallen vacant,” said former Khyber Pakhtunkhwa advocate general Shumail Ahmad Butt.
He contested the opinion shared by the ex-ECP official, saying the same mechanism as provided in articles 224 and 224-A needed to be adopted in this case as well.
Butt, who is a constitutional lawyer, said that now under Article 224 of the Constitution, the Khyber Pakhtunkhwa governor should appoint the new caretaker chief minister in consultation with the chief minister and leader of the opposition in the dissolved provincial assembly.
As per Article 224-A, in case of a disagreement between the CM and the opposition leader, the two forward two names each to a committee of the provincial assembly to be constituted by the speaker. If disagreements persist then the matter is referred to the ECP.
When asked about the then chief minister Mahmood Khan no longer being a PTI member, he said the Constitution had not placed a bar that a CM not commanding majority in the dissolved assembly should not be consulted.
Senior lawyer Babar Khan Yousafzai said a constitutional crisis had emerged after the demise of Mr Azam as, with the death, his caretaker cabinet also stood dissolved.
“Articles 224 and 224-A of the Constitution provide for nomination/appointment of a caretaker chief minister but there is complete silence about the procedure to be followed in case of his death,” he said. “It is a case of first impression and the burden will now be on courts to interpret the constitutional provisions,” he added.
On the other hand, Caretaker Information Minister Murtaza Solangi had said there was no room for speculation.
In a post on X (formerly Twitter), he said after the caretaker CM’s demise “the governor, chief secretary and the provincial government shall perform their duties accordingly”.
