The Peshawar High Court (PHC) on Wednesday dismissed a petition seeking the annulment of Sohail Afridi’s election as the Khyber Pakhtunkhwa chief minister, who is set to be administered his oath by the provincial governor, Faisal Karim Kundi, later today.
The petition, on which the court had reserved its verdict earlier today, was filed by JUI-F leader Maulana Lutfur Rehman yesterday. Rehman, who was among the four contenders for the KP CM post, had requested the court to “set aside” Afridi’s election and declare it null and void.
At today’s hearing, which was presided over by Justice Arshad Ali and Justice Waqar Ahmad, Barrister Yaseen appeared on behalf of Rehman against PTI’s Salman Akram Raja.
Addressing the court, Raja pointed out that the JUI-F petition at hand “has become ineffective in light of yesterday’s PHC order.”
Responding to his comments, Justice Ali said, “Yes, we are aware of the order, but let’s hear the petitioner’s argument.”
Barrister Yaseen told the court, “How was a new chief minister elected if the resignation of the former CM had not yet been accepted and the seat remained occupied?”
Citing Article 105 of the Constitution, the petitioner’s counsel pointed out that only the Governor has the right to advise the CM,“ adding that “Gandapur’s resignation was sent by post; he did not submit it himself.”
To this, Justice Ali responded, saying, “I understand your point — the post will remain vacant until the resignation is accepted.”
The petitioner’s lawyer further argued that the “election was unconstitutional and should not have taken place.” He cautioned that “electing a new chief minister while there already was a chief minister in place could create a constitutional upheaval.”
“If the resignation had been accepted, then it would have made sense to hold the election and all respective parties would have taken part in it,” he added.
“The cabinet has not yet been dissolved; it is still in place,” he noted, to which Justice Ali said: “ When the chief minister (Gandapur) is not in his position any more, how are we talking about the cabinet?“
“Yes, that is exactly what I am saying — Ali Amin Gandapur is still the chief minister,” Yaseen said, in response to the judge’s comments.
Justice Ali, addressing the petitioner’s lawyer, said, “Have you read yesterday’s order from the chief justice”?
“Yes, I have read it,” he said, alleging that PTI had filed an incorrect application.
Justice Ali offered the petitioner’s legal counsel two options: “to either withdraw the petition or let the case be heard on merit.”
“Decide on the merit,” barrister Yaseen said.
Subsequently, the court reserved its decision in the matter and later dismissed the petition.
The plea
Yesterday, JUI-F’s Rehman 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, Arbab Zarak Khan of the PPP and PTI’s Afridi.
In the petition, 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.
He requested the court to set aside the election and declare it “ab initio void” as it was “wholly unlawful, arbitrary, capricious, mala fide, without jurisdiction, coram non judice.”
Rehman asked 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.”
KP CM crisis
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, prompting the opposition to boycott the election.
On Monday, before the election, two resignations submitted to KP Governor Kundi by Gandapur — who stepped down on party founder Imran Khan’s directive — were returned over “disparate signatures”, and Kundi summoned him on October 15 (today) to settle the matter.
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. Following its boycott, candidates fielded by the JUI-F, the PPP and the PML-N received zero votes while Afridi won the race with 90.
At yesterday’s hearing at the PHC, Chief Justice (CJ) S.M. Attique Shah issued the directive to the Governor to administer the oath to CM-elect Afridi, instructing that the KP Assembly speaker should administer the oath if the governor did not.
The court’s decision 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.
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.
