PESHAWAR, OCT 14: The Peshawar High Court (PHC) directed Khyber Pakhtunkhwa Governor Faisal Karim Kundi on Tuesday to administer the oath to Chief Minister-elect Sohail Afridi tomorrow by 4pm.
PHC Chief Justice (CJ) S.M. Attique Shah issued the directive, further instructing that KP Assembly Speaker Babar Saleem Swati should administer the oath if Governor Faisal Karim Kundi did not.
Afridi’s election on Monday was held amid uncertainty about the status of Ali Amin Gandapur’s resignation from the provincial chief executive’s position. The two resignations submitted to KP Governor Faisal Karim Kundi by Gandapur — who is also from the PTI and stepped down on party founder Imran Khan’s directive — have been returned over “disparate signatures”.
But, the PTI maintains that a CM’s resignation does not require the governor’s approval under the Constitution. With this contention, the party elected Afridi in a session boycotted by the opposition.
The same day, in a pre-emptive move, the PTI approached the PHC with the request to nominate KP Assembly Speaker Babar Saleem Swati or any other person deemed appropriate in place of Governor Kundi to administer the oath to Afridi.
The court had 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 city. He said the governor had told him that his flight to Peshawar was scheduled for tomorrow. “He said he does not have a private plane […] and the provincial government could send him helicopter to arrive in the city today.”
Moreover, the advocate general requested the court to nominate a person to swear Afridi in and ensure that the oath-taking took place today.
Counsel for the PTI Salman Akram Raja and the KP governor’s lawyer, Amir Javed, also presented their arguments.
Raja contended that why did the governor want to verify Gandapur’s signatures. Accusing the opposition of intending to “create difficulties”, he argued that after a CM’s election, matters could not be delayed any further.
PHC Chief Justice (CJ) S.M. Attique Shah, who was presiding over the proceedings, observed that Article 255 of the Constitution, which deals with the subject of oath of office, had been amended to address issues as the one presently under consideration.
For his part, Kundi’s counsel Javed informed the court that he spoke to his client multiple times over the phone yesterday. The lawyer told the court that the governor stated that he would decide on Gandapur’s resignation if legal conditionalities were met.
The CJ then enquired whether the opposition parties had not participated in the election. He observed that the opposition had boycotted the election at the last minute.
Lawyer Javed requested the court to wait until 3pm tomorrow on the matter.
At that, the PHC CJ observed that under Article 255, a CM’s resignation did not require any approval.
Then, addressing Javed, he asked: “Can you guarantee that the governor will be present tomorrow and administer the oath?”
He went on to observe that the governor had raised objections over Gandapur’s signatures on his two resignation letters. “[Even though], Ali Amin Gandapur confirmed on the assembly floor that he had resigned.”
Arguing further on this, Javed cited multiple provisions from the Constitution.
He said “everything is clear” in Article 130(7), which states: “The chief minister shall hold office during the pleasure of the governor, but the governor shall not exercise his powers under this clause unless he is satisfied that the chief minister does not command the confidence of the majority of the members of the provincial assembly, in which case he shall summon the provincial assembly and require the chief minister to obtain a vote of confidence from the assembly.”
Moreover, he said the governor’s powers were also made clear in Article 48 (president to act on advice, etc.).
He assured the court that the governor would make a decision tomorrow in accordance with the Constitution.
At that, the CJ asked, “Who is running the province at the moment?”
He also enquired whether the election schedule for the CM’s post had been challenged.
Saturday and Sunday were off days for the court, which was why the schedule wasn’t challenged, lawyer Javed replied.
Later, the court reserved its decision on the matter.
Plea filed in PHC against chief minister’s election
Earlier today, JUI-F leader Maulana Lutfur Rehman also filed a petition in the PHC, requesting that the election of Afridi as the KP chief minister be “set aside” and declared null and void.
Rehman was one of the four people in the race fot the KP CM office, along with Sardar Shah Jehan Yousaf of the PML-N, and Arbab Zarak Khan of the PPP and PTI’s Sohail Afridi.
In a petition filed today, a copy of which is available with Dawn.com, Rehman named six respondents, including the KP government, KP Governor Faisal Karim Kundi, the KP Assembly through its Speaker Babar Saleem Swati, the secretary of the provincial assembly, outgoing KP Chief Minister Ali Amin Gandapur, and CM-elect Sohail Afridi.
In his petition, he requested the court to set aside the election and declare it “ab initio void” as the it was “wholly unlawful, arbitrary, capricious, mala fide, without jurisdiction, coram non judice.”
Rehman questioned how an election could be held if Gandapur’s resignation had not yet been accepted. Citing Article 130(8) of the Constitution, he stressed that elections for the post can not be held unless it was vacant.
Article 130(8) states that “the Chief Minister may, by writing under his hand addressed to the governor, resign his office”, and is the same clause that the PTI has been citing to contend that the CM’s resignation does not require the governor’s acceptance or approval.
Rehman’s petition further asked the court to declare decisions taken by the assembly and the speaker with regard to the CM appointment as “without lawful authority, void, and of no legal effect.”
The petition further urged the court to “declare all consequential notifications and actions, including the impugned notification, as illegal, arbitrary, capricious, without jurisdiction and having no legal effect.”
Rehman requested the court to halt any further proceedings in the matter until the governor had “lawfully received and verified” the resignation of Gandapur.
The petition called for a fresh election “in accordance with the Constitution and the assembly rules, after lawful confirmation of vacancy.”
It concluded by requesting the PHC to suspend the election result in order to “prevent chaos and ensure preservation of the rule of law.”
Speaking to the media outside the court, Rehman reiterated the opposition’s stance over the validity of the elections.
“We said this yesterday as well that the former chief minister’s resignation has not been accepted yet, and the governor has summoned him on Oct 15.
“Until the seat becomes vacant, the election can not be held,” he said.
Responding to a question that why the opposition chose to field candidates for the CM election if it believed the election was not in line with the law, he said, “At first, we were under the impression that the resignation had been finalised, but then the governor’s letter came to light, detailing that the resignation had not yet been finalised.”
From resignation to election
The barely two-year-old KP Assembly presently seems to be facing a constitutional crisis, which originates from incarcerated PTI founder Imran Khan’s decision on October 8 to change the command at the helm in the province.
In line with his directive, Gandapur resigned from his role the same day while the party’s general secretary, Salman Akram Raja, confirmed that the party had picked Sohail Afridi as his potential replacement.
The resignation letter, shared by Gandapur on X, was typed on his official letterhead and signed at the bottom. However, this initial resignation letter had apparently gotten lost in red tape, with the Governor’s House initially denying ever receiving it.
But, a copy of the letter seen by Dawn showed that it was received by the governor’s staff.
Subsequently, Gandapur sent another handwritten resignation to the governor, which was acknowledged by Kundi on Oct 11. 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 as per the constitution [and] relevant laws, subject resignation will be processed in due course of time,” he added.
Late at night the next day, Governor Kundi returned the two letters submitted by Gandapur over “disparate signatures” and summoned him on October 15 (tomorrow) to settle the matter.
For his part, Gandapur responded to Kundi’s post on X, stating: “Finally, the resignation submitted on October 8, previously denied by the Governor Office, also acknowledged.”
He further said that both resignations submitted by him bore his “authentic signatures”.
By that time, KP Assembly Speaker Babar Saleem Swati had already convened an assembly session to elect a new leader of the house. And the PTI maintained that under Article 130(8) of the Constitution, a chief minister’s resignation did not require the governor’s acceptance or approval.
The opposition, however, disagreed and walked out of the session held for the CM election yesterday. Following its boycott, candidates fielded by the JUI-F, the PPP and the PML-N recieved zero votes while Afridi won the race with 90.
