The Peshawar High Court (PHC) directed Khyber Pakhtunkhwa Governor Faisal Karim Kundi on Tuesday to administer the oath to Chief Minister-elect Sohail Afridi today 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 the governor did not.
The court’s decision, which was reserved earlier in the day, came on a PTI application seeking the nomination 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 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 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 chief minister’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, it approached the PHC with the request pertaining to Afridi’s oath-taking.
In its written order on the application released, the court noted that Gandapur had “unequivocally affirmed” on the floor of the provincial assembly that he had tendered his resignation on Oct 8. “In light of the certified copy of the transcript of the speech, […] it is manifest that the office of the chief minister stood vacated with effect from” Oct 8, the order stated.
It further said that consequently, a new chief minister was elected in accordance with the procedure laid down in the Constitution.
Citing Article 130(5) of the Constitution, the court observed that it required a newly elected CM to be sworn in by the governor before assuming office.
“Correspondingly, it is the constitutional obligation of the worthy governor to administer the oath of office to the newly elected chief minister without delay or obstruction.
“Certainly, upon his failure to administer oath to the newly elected chief minister within a reasonable time, it would be construed that such circumstances have arisen rendering the administering of oath to the newly [elected] chief minister impracticable in terms of Article 255 of the Constitution,” the order read.
It further stated that keeping in view the assurance given by Additional Attorney General (AAG) Sanaullah, who was representing the governor, the court expected that Kundi would fulfil his “constitutional obligations” and administer the oath to Afridi in accordance with the Constitution without further delay.
“This forum further trusts that no impediment shall be caused in the administration of oath, and that the process will be completed without any further delay.”
It added that if the governor failed to administer the oath to the CM-elect by 4pm today, in terms of the authority conferred under Article 255(2) of the Constitution, the PHC chief justice was nominating the KP Assembly speaker to administer the oath to Afridi.
“This direction is issued to uphold the sanctity of the Constitution, to ensure continuity in governance, and to prevent the constitutional vaccuum in the Province of Khyber Pakhtunkhwa,” the order said.
Following the court’s decision, Kundi said while speaking to the media in Karachi that he had been saying he would abide by the Constitution. “I never said that I would not administer the oath,” he added.
Earlier in the day, 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 for the KP CM office, along with Sardar Shah Jehan Yousaf of the PML-N, and Arbab Zarak Khan of the PPP and PTI’s Afridi.
In a petition filed, Rehman named six respondents, including the KP government, Governor Kundi, the KP Assembly through Speaker Swati, the secretary of the provincial assembly, Gandapur and 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 chief minister 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.”