KARACHI: Constitutional experts say that the unprecedented situation unfolding in Khyber Pakhtunkhwa, with two men from the same party (PTI) simultaneously being treated as chief minister, exposes serious gaps in how constitutional processes are handled when political will collides with procedural delays.
The PTI’s Sohail Afridi was elected as the new chief executive of the province on Monday, despite the opposition’s boycott of the process.With the governor and the opposition adamant that Gandapur is still CM and the PTI adamant that Afirdi is the CM, KP currently has two chief ministers in a way — depending on which side of the aisle one is standing on.
According to high court advocate Hassan Abdullah Niazi, this is not a situation that has cropped up before, though “there is a recent example of former Punjab governor Cheema refusing to administer the oath to the elected CM of Punjab (Hamza Shehbaz Sharif) in 2022. That move was also clearly against the spirit of the constitution as is this one”.
Niazi, though, says he can’t recall a situation where there were two CMs from the same party.For Barrister Ali Tahir, “this is the first time such a situation has emerged. Pakistan’s political history has seen many instances where the election of a chief minister ended up in litigation, such as the recent contest between Pervaiz Elahi and Hamza Shehbaz. But never before have there been two claimants to the chief minister’s office from the same political party”.
Tahir goes on to explain that what makes this case extraordinary is that one of the ‘CMs’ has publicly said he no longer considers himself chief minister, while the other, Sohail Afridi, has been elected by the provincial assembly. Says Tahir: “The confusion is only because the governor has not yet accepted Gandapur’s resignation or administered the oath to Afridi, creating a situation that is both unprecedented and politically awkward”.
So what can Kundi really do now? Per Niazi. “If Kundi doubles down, then the matter will most likely go to court the same way CM Hamza’s did -- and the court will either order an oath to be delivered or claim that the governor’s assent was necessary. It is highly unlikely that the latter situation would prevail”.
Governor Kundi can do “very little”, adds Barrister Tahir. He explains: “At most, Kundi can delay the oath-taking process, but even that delay cannot last indefinitely. The courts have already addressed such stand-offs in earlier cases. During the Pervaiz Elahi–Hamza Shehbaz dispute and later in the KP reserved seats case, the judiciary made it clear that if a governor refuses to administer the oath, another authority, such as the speaker or an authorised official, can be directed to perform the task”.
And could the new chief minister’s actions be considered unconstitutional before taking the oath? Niazi says that this will really depend on the view the courts take: “Let’s assume they say the CM’s resignation was not constitutionally valid, the court would then have to decide whether all actions taken afterwards were constitutionally valid or not by the new CM. In most cases, once a court finds that actions were taken illegally, it declares that all subsequent actions flowing from that act are also illegal”.
Barrister Tahir takes another view, saying that “constitutionally, once the provincial assembly issues a notification showing that a majority of members support a particular person, that person’s authority as chief minister is recognised. The assembly proceedings in KP have made it clear that Sohail Afridi enjoys a majority and his authority is therefore constitutionally valid, and the governor’s personal acceptance or delay in administering the oath does not undermine it”.
“It would frankly be comical for Kundi to double down in this situation since Gandapur has no interest in remaining in the position”, says Niazi, adding: “Beyond a refusal to administer the oath to Afridi, I don’t see how Kundi can do anything else at this point. However, strange things happen in Pakistan”.
Tahir says that, “historically, courts have avoided interfering in assembly proceedings, the constitution also bars it (Articles 69 and 127), and since the majority’s position is clear and Gandapur himself has raised no objection as the aggrieved party, there is little ground for judicial intervention. Even if the matter reaches a constitutional bench, it is unlikely to alter the process...The ongoing controversy is political in nature, not legal”.
Hafiz Ehsaan Ahmad Khokhar, advocate of the Supreme Court, offers an alternative view, saying that until the governor accepts the chief minister’s resignation, the CM continues to occupy the constitutional office. He feels that “any move to elect another chief minister prior to the governor’s acceptance of the incumbent’s resignation is unconstitutional, void and without legal effect, as the office is not yet vacant in the eyes of the constitution”.
Khokhar highlights that no precedent exists in Pakistan’s constitutional or political history where two chief ministers have simultaneously claimed authority over the same province. He feels that “the current attempt to hold an election and request oath administration from the governor while the previous chief minister’s resignation remains unaccepted represents an unprecedented constitutional anomaly and disrupts the orderly transition of power”.
Advocate Khokhar stresses that any actions, decisions, or directives issued by “an individual claiming to be chief minister without a constitutionally valid election or oath-taking are extra-constitutional and without lawful authority” and can be challenged under Article 199 before the high court.
According to him, “the Supreme Court, in landmark cases such as PLD 1992 SC 72 and PLD 2010 SC 61, held that actions undertaken without fulfilling mandatory constitutional prerequisites are non est in law — meaning they are legally non-existent”.
On the role of the governor, Khokhar sees him as “the constitutional head of the province under Articles 101 and 105, and his authority includes accepting the resignation, summoning the assembly and administering the oath to a duly elected chief minister”. He feels that the speaker has no constitutional power to summon a session for electing a new chief minister “or to refer a summary to the governor for oath-taking without the governor’s prior constitutional action”.
For Khokhar, this episode “unfortunately reflects the growing disregard for constitutional boundaries witnessed repeatedly since April 2022, undermining both provincial and federal governance frameworks”.
Politically speaking, says journalist Majid Nizami, “a governor is ideally really more like a post office in a sense-- in that he is supposed to process matters and send them ahead”. But when legal matters are intertwined with politics, adds Nizami, “such maneuvering is done”. He feels that Governor Kundi “can’t do much -- not even write ‘approved’ and send it ahead. And since the governor has no such powers, anything the new CM does cannot be called extra-constitutional”.
The only hitch that can arise is if “someone takes this to court, and if this is judicially maneuvered, then the KP government may face trouble, but other than that, they are in the safe zone”, says Nizami.As for Gandapur, according to Nizami, how Gandapur has managed to deal with this resignation “has only made him more popular within the party”.