The Peshawar High Court (PHC) on Tuesday directed Khyber Pakhtunkhwa Governor Faisal Karim Kundi to administer oath to Chief Minister-elect Sohail Afridi at 4 pm tomorrow.
PHC Chief Justice (CJ) SM Attique Shah issued the directive, further ordering that KP Assembly Speaker Babar Saleem Swati should take oath if the governor failed to do so.
The court’s decision, which was reserved today, came following a petition by the PTI seeking the appointment of the assembly speaker or any other person “considered appropriate” in place of the governor to administer the oath to Afridi.
Afridi’s election on Monday came amid uncertainty over the status of Ali Amin Gandapur’s resignation as provincial chief executive. The two resignations submitted to KP Governor Kundi by Gandapur, who also belongs to the PTI and resigned on the directive of party founder Imran Khan, have been returned for “disparate signatures”.
But the PTI maintains that the resignation of a prime minister does not require the governor’s approval under the Constitution. With this argument, the party elected Afridi in a session boycotted by the opposition.
On the same day, in a pre-emptive measure, the PTI approached the PHC with the request to appoint Swati or any other person deemed appropriate in place of Governor Kundi to administer oath to Afridi.
The court then directed Additional Attorney General (AAG) Sanaullah to confirm whether the KP governor had received the summary related to Afridi’s oath-taking from the assembly secretariat and submit a reply today.
He informed the court today that the governor was out of town. He said the governor had told him that his flight to Peshawar was scheduled for tomorrow. “He said he doesn’t have a private plane. […] and the provincial government could send a helicopter to arrive in the city today.”
Additionally, the Advocate General asked the court to appoint a person to administer the oath to Afridi and ensure that the oath took place today.
PTI lawyer Salman Akram Raja and KP governor’s lawyer Amir Javed also presented their arguments.
Raja maintained that why did the governor want to verify Gandapur’s signatures? Accusing the opposition of trying to “create difficulties”, he stated that after the CM’s election, things cannot be delayed any further.
CJ Shah, presiding over the proceedings, observed that Article 255 of the Constitution, which deals with the issue of oath of office, had been amended to address issues such as the one currently under consideration.
For his part, Kundi’s lawyer, Javed, informed the court that he spoke to his client several times on the phone yesterday. The lawyer told the court that the governor stated that he would decide on Gandapur’s resignation if the legal conditions were met.
The Chief Justice then asked if the opposition parties had not participated in the elections. He noted that the opposition boycotted the elections at the last minute.
Javed requested the court to wait till 3 pm tomorrow to resolve the matter.
In view of this, the PHC Court of Justice observed that under Article 255, the resignation of a Prime Minister did not require any approval.
Then, turning to Javed, he asked, “Can you guarantee that the governor will be present tomorrow and take oath?”
He went on to note that the governor had raised objections to Gandapur’s signatures in his two resignation letters. “[Even though]Ali Amin Gandapur confirmed in the assembly that he had resigned.”
Arguing further on this, Javed cited multiple provisions of the Constitution.
He said “all is clear” in Article 130(7), which states: “The Prime Minister shall hold office for as long as the Governor desires, but the Governor shall not exercise his powers under this clause unless he is satisfied that the Prime Minister does not have the confidence of the majority of the members of the provincial assembly, in which case he shall convene the provincial assembly and require the prime minister to obtain a vote of confidence of the assembly”.
Furthermore, he said that the governor’s powers were also clear in Article 48 (the president shall act on advice, etc.).
He assured the court that the governor will make a decision tomorrow in accordance with the Constitution.
Given that, the TJ asked: “Who runs the province at this moment?”
He also asked if the electoral calendar for the post of CM had been questioned.
Saturday and Sunday were days off for the court, so the schedule was not questioned, Javed responded.
Finally, the court reserved its decision on the matter and then ruled that the KP governor should swear in Afridi tomorrow at 4 pm.
Kundi says he never refused to take oath
Following the court’s decision, Kundi told media in Karachi that he had said he would respect the Constitution. “I never said I wouldn’t take the oath,” he added.
Kundi said he was in Karachi on an official engagement and “as governors do not have special planes, I have requested the [Sindh] Prime Minister, for example.”
When asked if he would reach Peshawar tonight, he replied, “God willing, I will reach anytime tonight.”
‘Big news’
PTI president Advocate Ali Gohar hailed the development as “great news from the judiciary”. He hoped that the transition would be completed tomorrow and that the new KP government would “remain focused on public issues.”
Statement presented in PHC against the election of the prime minister
Earlier today, JUI-F leader Maulana Lutfur Rehman also filed a petition in the PHC, requesting that Afridi’s election as KP chief minister be “annulled” and declared null and void.
Rehman was one of the four people in the race for the KP CM office, along with Sardar Shah Jehan Yousaf of the PML-N, and Arbab Zarak Khan of the PPP and Afridi of the PTI.
In a petition filed today, a copy of which is available with sunrise.comRehman named six respondents including the KP government, Governor Kundi, KP Assembly through Speaker Swati, provincial assembly secretary, Gandapur and Afridi.
In his petition, he asked the court to annul the election and declare it “ab initio void” for being “totally illegal, arbitrary, capricious, bad faith, incompetent, coram non judice.”
Rehman questioned how elections could be held if Gandapur’s resignation has not yet been accepted. Citing Article 130(8) of the Constitution, he stressed that elections cannot be held for the office unless it is vacant.
Article 130(8) states that “the Chief Minister may, in a writing signed by him addressed to the governor, resign from office”, and it is the same clause that the PTI has been citing to maintain that the resignation of the CM does not require the acceptance or approval of the governor.
Rehman’s petition further asked the court to declare the decisions taken by the assembly and the president regarding the appointment of the prime minister as “without legal authority, null and void.”
The petition further urged the court to “declare all notifications and consequent actions, including the impugned notification, as illegal, arbitrary, capricious, incompetent and without legal effect.”
Rehman asked the court to stop any further proceedings in the matter until the governor had “legally received and verified” Gandapur’s resignation.
The petition called for a new election “in accordance with the Constitution and the rules of the assembly, after legal confirmation of the vacancy.”
He concluded by asking the APS to suspend the election result to “avoid chaos and ensure the preservation of the rule of law.”
Speaking to the media outside the court, Rehman reiterated the opposition’s stance on the validity of the elections.
“Yesterday we also said that the resignation of the former prime minister has not yet been accepted and the governor summoned him on October 15.
“Until the seat is vacant, elections cannot be held,” he said.
Responding to a question on why the opposition chose to field candidates for the CM elections if it believed the elections were not in accordance with the law, he said: “Initially we were under the impression that the resignation had been final, but then the governor’s letter came to light, detailing that the resignation had not yet been finalised.”
From resignation to election
The KP Assembly, which has only been in existence for two years, currently appears to be facing a constitutional crisis, which has its origins in Imran’s decision on October 8 to change the command that runs the province.
In line with his directive, Gandapur resigned from his position on the same day, while the party’s general secretary confirmed that the party had chosen Afridi as his possible replacement.
The resignation letter, shared by Gandapur on X, was typed on his official letterhead and signed at the bottom. However, this initial letter of resignation apparently got lost in the bureaucracy, and the Governor’s House initially denied receiving it.
But, a copy of the letter seen by Sunrise showed that he was received by the governor’s staff.
Gandapur subsequently sent another handwritten resignation to the governor, which was acknowledged by Kundi on 11 October. He said in a post on X that the Governor House had received a handwritten resignation letter from Gandapur. “After thorough scrutiny and legal formalities according to the constitution [and] relevant laws, the subject’s resignation will be processed in due time,” he added.
Late in the evening of the next day, Governor Kundi returned the two letters submitted by Gandapur with “disparate signatures” and summoned him on October 15 (tomorrow) to resolve the matter.
For its part, Gandapur responded to Kundi’s post on X, stating: “Finally, the resignation submitted on October 8, previously denied by the Governor’s Office, is also recognized.”
He further said that both the resignations submitted by him bore his “authentic signatures”.
By then, Swati had already called an assembly to elect a new leader of the house. And the PTI maintained that under Article 130(8) of the Constitution, the resignation of a prime minister did not require the acceptance or approval of the governor.
The opposition, however, did not agree and walked out of the session held yesterday for the CM elections. Following their boycott, the candidates fielded by JUI-F, PPP and PML-N received no votes, while Afridi won the race with 90.
