The Supreme Court of Pakistan, through its landmark judgment dated 27 June 2025, provided unequivocal constitutional and legal guidance on the allocation and notification of reserved seats for women and non-Muslims in the Khyber Pakhtunkhwa (KP) Provincial Assembly. In compliance with this ruling, the Election Commission of Pakistan (ECP) promptly issued formal notifications declaring the successful candidates for these reserved seats, under its constitutional authority as per Articles 218(3) and 219(d) of the Constitution, read with Sections 98 and 103 of the Elections Act, 2017.

Article 65 mandates that no member can sit or vote without taking the prescribed oath.

Despite this clarity, a serious constitutional impasse has emerged owing to the Speaker’s failure to summon or facilitate the Assembly session for administering the oath to more than 26 newly notified members. This inaction goes beyond mere procedural lapse and has matured into a constitutional violation that directly impairs the representational integrity of the Assembly and threatens the legality of the upcoming Senate elections governed under Article 59(2) of the Constitution.

Article 65 of the Constitution mandates: “No person shall sit or vote in the House unless he has taken an oath before the House in the form set out in the Third Schedule.” This provision is absolute and creates a constitutional bar against participation in legislative proceedings, including voting in Senate elections, unless the member has taken the prescribed oath. The oath-taking, therefore, is a constitutional requirement and not a matter of discretion or political expediency.

Under the Khyber Pakhtunkhwa Provincial Assembly Procedure and Conduct of Business Rules, 1988: Rule 6 entrusts the Speaker with the responsibility to preside over Assembly proceedings; Rule 7(1) prohibits any member from taking their seat without first taking the oath; Rule 12(3) allows the Deputy Speaker to act in the Speaker’s absence; and Rules 13 and 14 provide a constitutional fallback mechanism in cases where both the Speaker and Deputy Speaker are unable or unwilling to perform their duties.

This framework leaves no room for deliberate institutional non-performance. The failure of both the Speaker and Deputy Speaker to fulfill their responsibilities triggers an alternate constitutional route to prevent institutional paralysis. Article 109(a) of the Constitution stipulates: “The Governor shall, from time to time, summon the Provincial Assembly to meet at such time and place as he thinks fit…”

Article 130(2) further mandates the Governor to summon the first sitting of the Assembly following a general election. When the Speaker and Deputy Speaker fail to perform their constitutional and statutory functions, these provisions empower the Governor to act in the interest of constitutional continuity and institutional functionality.

The Governor has constitutional authority under Articles 109 and 130 to summon the Assembly if the Speaker and Deputy Speaker fail.

Moreover, under Rules 13 and 14 of the KP Assembly Rules, 1988, the Governor is authorized to direct that any other member of the Assembly preside over a session if both the Speaker and Deputy Speaker are unavailable or fail to act constitutionally and create intentional obstruction in the process of Article 65 of the Constitution.

In this case, where more than 26 members are awaiting oath under Article 65, the Governor’s role becomes crucial, particularly because of the Senate elections for which a strict constitutional timeline is in place as per the ECP’s schedule. Therefore, in the current impasse, the Governor is constitutionally competent to summon the Assembly and make alternative arrangements to facilitate oath-taking, ensuring the Assembly is duly constituted before Senate elections.

It may be argued that Article 255 of the Constitution provides relief in cases where the prescribed form or timing of an oath is not fulfilled, stating:  “Where, under the Constitution, a person is required to make an oath, the failure to make that oath does not render any act invalid, if the failure was due to inadvertence or unavoidable cause.”

However, it is critical to note that Article 255 has been amended through the 26th Constitutional Amendment, and even before that amendment, it was never intended to protect deliberate, institutional refusal to administer oaths. In the present case, the notified members are willing to take the oath, and the obstruction stems from the Assembly’s institutional leadership. Therefore, the Article has no application in such a situation of deliberate constitutional defiance, especially when other constitutional provisions under Articles 109 and 130, read with Rules 13 and 14, allow alternate lawful recourse through the office of the Governor.

This is not a case of a single individual’s failure to take oath due to inadvertence—it concerns a large number of members, whose inability to take the oath is due to the institutional failure of the Assembly’s leadership, thereby invoking a higher threshold of constitutional response.

Article 59(2) of the Constitution stipulates that elections to the Senate shall be held through the system of proportional representation by means of a single transferable vote. The effectiveness of this system is predicated on the full composition of the Provincial Assembly.

Any attempt to conduct Senate elections without the inclusion of members on reserved seats will violate the principle of proportional representation, rendering the elections constitutionally defective and vulnerable to judicial scrutiny. The Supreme Court, in multiple precedents, has underscored the sanctity of representational completeness and electoral integrity.

Article 255 does not protect deliberate institutional obstruction of oath-taking.

In case constitutional and assembly mechanisms fail to resolve the deadlock, affected members may invoke the jurisdiction of the High Court under Article 199 or the Supreme Court under Article 184(3). The judiciary, through a writ of mandamus, may compel the performance of constitutional duties or even direct the nomination of a presiding member in line with the Assembly Rules and constitutional provisions.

The Constitution itself anticipates such procedural standstills and provides for institutional substitutes, for instance, the Deputy Speaker acting in the Speaker’s absence, or the Governor stepping in under Article 109. These safeguards ensure the continuity of constitutional functions without needing to involve the office of the Chief Justice or the Supreme Court until all constitutional remedies have been exhausted.

If the Speaker or Secretary of the Assembly is found to have willfully obstructed constitutionally mandated processes, they may be held liable for contempt under Article 204 of the Constitution, with courts empowered to issue binding directions to address such obstruction. Additionally, a vote of no confidence can be initiated under Rule 12 of the Assembly Rules, and disciplinary or legal actions may be pursued to ensure restoration of constitutional compliance. Upholding constitutional order and parliamentary functionality requires decisive enforcement of these measures to safeguard the integrity of democratic institutions and prevent institutional paralysis.

The deliberate obstruction of oath-taking by the Speaker of the Khyber Pakhtunkhwa Assembly is not a mere political disagreement; it is a serious constitutional violation that threatens to unravel the legal structure of representative democracy.

The situation must be resolved urgently to prevent distortion in the Senate’s electoral process and to uphold the principle of equal representation. The Governor is constitutionally empowered, under Articles 109 and 130, read with Assembly Rules 13 and 14, to summon the Assembly and designate a member to preside over oath-taking. Article 255, as amended, does not shield such deliberate inaction from constitutional scrutiny.

Senate elections under Article 59(2) require a full Assembly composition for lawful proportional representation.

All relevant stakeholders, including the Election Commission, the Governor, and the affected members, must act decisively within the constitutional framework to restore legality and representation in the Assembly before the Senate elections.

The current crisis underscores the need for constitutional vigilance, institutional neutrality, and judicial enforcement to safeguard parliamentary democracy and the rule of law. The Constitution must operate without fear or favour, and its clear mandates must be respected and enforced by all holders of public office.

Disclaimer: The opinions expressed in this article are solely those of the author. They do not represent the views, beliefs, or policies of the Stratheia.