Recent developments in Khyber Pakhtunkhwa have raised serious constitutional concerns. A situation has emerged where a session of the provincial assembly was convened and a new chief minister was purportedly elected, even though the governor has not formally accepted the resignation of the outgoing chief minister.
This has created a constitutional and political anomaly that challenges the very principles of lawful governance, continuity of office, and constitutional propriety.
Under Article 130(8) of the constitution of Pakistan, a chief minister may resign by addressing a written resignation to the governor, but such resignation does not take effect until the governor formally accepts it. Until that acceptance, the chief minister continues to occupy the constitutional office and perform his duties lawfully. Therefore, 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.
Accordingly, the summary or communication forwarded by the speaker to the governor for administering the oath to a newly 'elected' chief minister carries no legal consequence, as the process that led to such election lacks constitutional validity from the very inception.
The session of the Khyber Pakhtunkhwa Assembly convened for the election of a new chief minister was neither legal nor constitutional. Under Article 109, the authority to summon or prorogue the provincial assembly lies exclusively with the governor and not with the speaker. Moreover, under Article 130(8), since the governor has not yet accepted the resignation of the outgoing chief minister, the office legally remains occupied, and therefore, no election for a successor could lawfully take place.
Consequently, the purported election and the subsequent referral of a summary to the governor for administering the oath to the newly 'elected' chief minister are constitutionally invalid, non-binding, and without legal effect, as they derive from a void session. The governor, in such circumstances, is not constitutionally bound to administer the oath, since the entire process lacks legal and constitutional foundation.
There exists no precedent in Pakistan’s constitutional or political history where two chief ministers have simultaneously claimed authority over the same province. Under Articles 130 to 133, the constitution ensures continuity of governance, whereby the incumbent chief minister continues to hold office until the governor has accepted his resignation and a duly elected successor has taken oath before the same constitutional authority.
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. It disrupts the orderly transition of power and contravenes the very spirit and text of constitutional continuity and stability.
Any actions, decisions, or directives issued by an individual claiming to be the chief minister without a constitutionally valid election or oath-taking are extra-constitutional and without lawful authority. Such acts are void ab initio and can be challenged under Article 199 before the high court.
The Supreme Court, in 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. Therefore, any step or decision taken by the newly 'elected' chief minister or his purported cabinet following today’s invalid session carries no legal sanctity and is liable to be declared unconstitutional by the superior judiciary.
The governor serves as the constitutional head of the province, as outlined in Articles 101 and 105, and his authority includes accepting a resignation, summoning the assembly and administering the oath to a duly elected chief minister. 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. Therefore, any such referral or direction issued today has no binding effect upon the governor. He is neither constitutionally obligated nor empowered to administer an oath to a person whose election emerges from a process devoid of constitutional validity.
This episode reflects the growing disregard for constitutional boundaries witnessed repeatedly since April 2022, undermining both provincial and federal governance frameworks. At this stage, referring a summary by the speaker to the governor for administering the oath to the newly 'elected' chief minister will not yield any constitutional effect, as the entire process lacks legal backing from its inception.
The ongoing political turmoil in KP stems from consistent violations of constitutional procedure and the substitution of political motives for constitutional discipline. The only lawful course lies in strict adherence to Articles 109, 130(8), 133, and 105 of the constitution. The governor must first accept the resignation of the incumbent chief minister; only thereafter can the Assembly be constitutionally summoned for the election of a successor and subsequent oath-taking. Until such a lawful process is completed, the outgoing chief minister remains the sole legitimate officeholder. The so-called election and subsequent procedural acts are unconstitutional, unsustainable, and without effect.
To restore political stability and institutional credibility in the country, all state organs must return to the clear text of the constitution and respect the plain language of the constitution. Upholding rule of law, ensuring continuity of governance and reinforcing institutional integrity are essential to protect Pakistan’s constitutional order from the recurring tide of expedient politics.
The writer is a practising advocate of the Supreme Court of Pakistan with 25 years of legal standing. He can be reached at: hafizahsaan47gmail.com