- Court gives Governor Kundi 4pm deadline to fulfil duty or cede function to speaker, warns against constitutional vacuum amid delay in oath-taking
- Says upholding continuity of governance ‘essential to constitutional order,’ stressing CM’s post stood vacated after Gandapur’s Oct 8 resignation
- PTI terms ruling a victory for rule of law; opposition vows to contest process
PESHAWAR: The Peshawar High Court (PHC) on Tuesday directed Khyber Pakhtunkhwa Governor Faisal Karim Kundi to administer the oath to Chief Minister-elect Sohail Afridi by 4pm on Wednesday (today), ruling that in case of non-compliance, the provincial assembly speaker should perform the constitutional function to avert “any governance vacuum in the province.”
Delivering the order reserved earlier in the day, PHC Chief Justice S.M. Attique Shah held that the office of the chief minister stood vacated with effect from Oct 8 following the resignation of Ali Amin Gandapur, and that the subsequent election of Mr Afridi as the new chief minister was consistent with the procedure laid down in the Constitution.
The court’s direction came amid a political and constitutional impasse in Khyber Pakhtunkhwa over the governor’s refusal to proceed with the oath-taking of the new chief minister, citing “disparate signatures” on two resignation letters submitted by the outgoing PTI chief minister.
The PTI had approached the high court seeking an order to ensure timely administration of oath to Mr Afridi, arguing that the governor’s delay was unconstitutional and could create a governance vacuum.
In its detailed ruling, the PHC noted that Mr Gandapur had “unequivocally affirmed” on the floor of the provincial assembly that he had tendered his resignation on Oct 8 in line with party founder Imran Khan’s directive. “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 that date,” the order read.
The court held that Article 130(5) of the Constitution required a newly elected chief minister to take oath before assuming office, adding that it was the constitutional duty of the governor to administer that oath “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 impracticable in terms of Article 255 of the Constitution,” the order said.
Citing the assurance of Additional Attorney General (AAG) Sanaullah, who appeared on behalf of the governor, the bench observed that it expected Mr Kundi to “fulfil his constitutional obligations and complete the process without further delay.”
However, the order made it clear that if the governor failed to administer the oath by 4pm today, the PHC, in exercise of its authority under Article 255(2), was designating the Khyber Pakhtunkhwa Assembly Speaker Babar Saleem Swati to perform the function.
“This direction is issued to uphold the sanctity of the Constitution, to ensure continuity in governance, and to prevent a constitutional vacuum in the province,” the order concluded.
Proceedings of the case
During the hearing earlier in the day, the bench questioned the reasons for the delay in oath-taking and asked the governor’s counsel to confirm whether the assembly secretariat’s summary had been received.
AAG Sanaullah informed the court that the governor was in Karachi on an official engagement and expected to return on Wednesday. “He said he does not have a private plane and could only reach earlier if the provincial government provided a helicopter,” the law officer added.
The advocate general urged the court to appoint an alternative official to administer the oath to ensure that the process was completed within the constitutional timeframe.
PTI counsel Salman Akram Raja argued that the governor’s verification of the outgoing chief minister’s signatures had no constitutional basis. “Once tendered in writing, a chief minister’s resignation takes effect immediately under Article 130(8). No approval is required,” he contended, accusing the opposition of “deliberately creating hurdles” in the constitutional process.
Chief Justice Shah observed that Article 255 of the Constitution, which deals with the administration of oath, had been amended precisely to address such contingencies and prevent constitutional paralysis.
For his part, the governor’s counsel, Amir Javed, said he had spoken to Mr Kundi multiple times over the phone and that the governor intended to decide on Mr Gandapur’s resignation after fulfilling “necessary legal formalities.”
The bench also enquired whether the opposition had participated in the election for the chief minister. The court was informed that the opposition boycotted the process shortly before voting began, leading the speaker to proceed in accordance with assembly rules.
When Mr Javed requested the court to wait until 3pm Wednesday to allow the governor to return to Peshawar, the chief justice asked whether the counsel could guarantee the governor’s presence.
He further observed that the governor’s objections regarding “disparate signatures” appeared irrelevant since Mr Gandapur had already confirmed his resignation publicly on the assembly floor.
Mr Javed cited multiple constitutional provisions, including Article 130(7), which states that the chief minister holds office during the pleasure of the governor, and Article 48, which outlines the president’s powers to act on advice. He maintained that the governor would act in accordance with the Constitution.
At one point, the chief justice asked pointedly: “Who is running the province at the moment?” and also observed that the opposition had not challenged the election schedule during the weekend recess. After hearing all sides, the bench reserved its decision, later issuing the detailed written order in the afternoon.
Governor’s response
Following the PHC decision, Governor Kundi told reporters in Karachi that he had never refused to administer the oath and would act strictly in accordance with the Constitution. “I have been on official duty and requested the Sindh chief minister for a flight arrangement. God willing, I will reach Peshawar tonight,” he said.
He added that as a constitutional office-holder, he respected the judiciary and intended to comply with the court’s ruling.
PTI welcomes verdict
The PTI welcomed the PHC decision as a “vindication of the rule of law,” with party chairperson Barrister Gohar Ali Khan describing it as “great news from the judiciary.”
In a post on X, he expressed hope that the transition would now proceed smoothly and that the new provincial government would “stay focused on public welfare.”
Speaking outside Adiala Jail after meeting party founder Imran Khan, Mr Gohar said the PTI leader appreciated the unity displayed by party legislators during the transition and urged the new provincial administration to prioritise governance.
PTI MNA Asad Qaiser said every citizen in Khyber Pakhtunkhwa knew that the election of the new chief minister was “conducted strictly in accordance with the law and the Constitution.”
He said the PTI did not seek confrontation but would not allow any attempt to undermine its democratic mandate. “No matter how much they try, they cannot break a single worker of Imran Khan,” he said in a post on X.
Speaking to reporters outside the PHC, Mr Qaiser said democracy and law had “prevailed today,” and thanked the PHC chief justice for issuing what he termed a “courageous and constitutionally sound” verdict.
Opposition challenge
Earlier in the day, JUI-F leader Maulana Lutfur Rehman filed a petition in the PHC seeking to nullify Mr Afridi’s election, arguing that the process was unconstitutional since Mr Gandapur’s resignation had not been lawfully accepted.
The petition named six respondents, including the KP government, Governor Kundi, Speaker Swati, the assembly secretary, and both Mr Gandapur and Mr Afridi. It contended that the election was “wholly unlawful, arbitrary, capricious, and coram non judice.”
Citing Article 130(8) of the Constitution, Mr Rehman maintained that an election could only take place after the office of chief minister became vacant through a valid resignation. “Until the governor lawfully receives and verifies the resignation, the seat remains occupied,” he argued.
He urged the court to suspend all related notifications and actions and to order a fresh election “in accordance with the Constitution and assembly rules after lawful confirmation of vacancy.”
Speaking to the media outside the court, the JUI-F leader reiterated the opposition’s stance, saying: “Until the resignation is confirmed, an election cannot be held.”
Asked why the opposition fielded candidates if it considered the election invalid, he replied that they initially believed the resignation was finalised but later learned from the governor’s communication that it was not.
From resignation to election
The constitutional controversy stems from Imran Khan’s Oct 8 directive to replace Mr Gandapur as chief minister. In compliance, Mr Gandapur submitted his resignation the same day, and PTI’s central leadership nominated Mr Afridi as his successor.
The typed resignation letter, sent on official letterhead and signed, was initially reported lost in correspondence, with the Governor House denying receipt. A second handwritten resignation followed, acknowledged by Mr Kundi on Oct 11.
Mr Kundi stated on X that the resignation would be processed “after thorough scrutiny and legal formalities.” However, the next day, he returned both letters citing “disparate signatures” and summoned Mr Gandapur for a meeting on Oct 15 to resolve the issue.
Mr Gandapur responded that both letters carried his “authentic signatures” and accused the governor of causing unnecessary delay. Meanwhile, Speaker Swati convened a session for the election of a new leader of the house, citing Article 130(8), which provides that a chief minister may resign by writing under his hand to the governor—without the need for formal acceptance.
The opposition boycotted the session, terming it unconstitutional. As a result, candidates fielded by the JUI-F, PPP, and PML-N received no votes, while Mr Afridi was elected with 90 votes from PTI lawmakers.
Political observers view the impasse as a test of constitutional interpretation and institutional balance in a province already navigating political instability and governance challenges. The PHC’s intervention, they note, was aimed at ensuring continuity of administration while reinforcing the constitutional boundaries between the executive and the governor’s office.
By Tuesday night, as the court’s deadline approached, all eyes were on whether Governor Kundi would return to Peshawar in time to comply with the PHC’s directive—or whether, for the first time in the province’s recent history, the assembly speaker would administer the oath to a chief minister-elect under Article 255.
Constitutional Context
Article 130(8): Allows a chief minister to resign by writing under his hand to the governor. The resignation takes effect once submitted and does not require formal acceptance.
Article 255(2): Provides that if it becomes “impracticable” for the person authorised to administer an oath to do so, another person nominated by the court or competent authority may administer it.
