Constitutionality matrix of no-confidence

Politics, in Pakistan, has long been an unending litany of partisan in-fighting, with no real benefit accruing to the public at large. The most tangible example of this ‘zero-sum’ game of politics was Pakistan’s lost decade of the 1990s, when, within one decade, five governments changed hands, without any one of them completing its constitutionally prescribed tenure. When democracy was restored in our land, after the fall of General Pervez Musharraf’s government, it was argued that our politicians (signatories of the Charter of Democracy) had learnt their democratic lesson, and would no longer focus their energies (exclusively) on partisan disenfranchisement. However, within ten years of democratic rule, our politicians (from all sides of the aisle) have reverted to the pettiness of the past, proving that democracy really is the best revenge in a caustic political culture.

The latest in this episode of political leg-pulling is the contemplated move of ‘no-confidence’, against Prime Minister Imran Khan.

To appreciate the constitutional and political consequences of such a move, it is important to first understand the precise legal contours of initiating such action. Article 91(4) of the Constitution expressly stipulated that “The Prime Minister shall be elected by the votes of the majority of the total membership of the National Assembly.” Following this procedure, on August 18, 2018 Imran Khan was elected as the Prime Minister of Pakistan with 176 (out of 342) votes from the National Assembly.

Under our Constitution, a duly elected Prime Minister can be removed, inter alia, through a ‘vote of no-confidence’ brought about in accordance with Article 95 of the Constitution. In this regard, per Article 95(1) “a resolution for a vote of no-confidence moved by not less than twenty per centum of the total membership of the National Assembly may be passed against the Prime Minister”. Simply put, as a first step, twenty percent of the total members of the National Assembly need to bring a resolution of no-confidence against the Prime Minister, for the National Assembly to vote in this regard. Thereafter, per Article 95(2) of the Constitution, such resolution is to be voted upon after “three days” and no “later than seven days, from the day on which such resolution is moved in the National Assembly”. And, within this period, per Article 95(4) of the Constitution, if such resolution “is passed by majority of the total membership of the National Assembly, the Prime Minister shall cease to hold office.” The only exception in this regard is provided for under Article 95(3) of the Constitution, which states that a vote of no confidence “shall not be moved in the National Assembly while the National Assembly is considering demands for grants submitted to it in the Annual Budget Statement.”

Importantly, per Rule 14, read with Rule 37 and Schedule II of the Rules of Procedure and Conduct of Business in the National Assembly, 2007 (the “2007 Rules”), a no-confidence vote is not conducted through secret ballot, and is instead done in the light of day, by a show of hands.

The voting for resolution of vote of no-confidence is presided over by the Speaker of the National Assembly. As a result, especially in cases where the parliamentary margins are narrow, the role and discretion of the Speaker, in calling the vote of no-confidence, assumes critical importance. The Speaker, employing partisan tactics, can call such a vote on short notice, at a time when members of the opposition are not present in the Assembly or will have trouble getting there in time. Consequently, the discretion and control of the Speaker to call such a vote, in terms of the 2007 Rules, can sometimes be the difference between such a vote succeeding or failing.

To cater for this discretion of the Speaker, opposition political parties have hinted at simultaneously bringing a vote of no-confidence against the Speaker as well as the Deputy Speaker of the National Assembly. Their ambition, in this regard, is to first replace the presiding official of the National Assembly, and subsequently call a vote of no-confidence against the Prime Minister, at a time and in a manner that best suits the quorum of opposition leaders.

As such, another legal question that assumes tremendous importance is this: what will happen if a vote of no-confidence is brought, simultaneously against the Prime Minister, the Speaker and the Deputy Speaker of the National Assembly.

In such circumstances, per Rule 32 of the 2007 Rules, the election of the Prime Minister will be held “After the election of the Speaker and the Deputy Speaker”. This idea, and the urgency of electing the Speaker of the National Assembly, is evident in Rule 11 of the 2007 Rules, which states that, whenever the office of the Speaker or the Deputy Speaker “become vacant”, if the National Assembly is in session, the election to such office of the Speaker is to be held “as soon as possible”. However, if the National Assembly is not in session when such an office becomes vacant, the election is to be held at the “commencement of its next session”. And, per Rule 10 of the 2007, election of the Deputy Speaker is to be held “immediately after the election of Speaker”.

Therefore, in case a resolution for vote of no-confidence is brought simultaneously against the Prime Minister, Speaker and Deputy Speaker of the National Assembly, the 2007 Rules would compel that Speaker and the Deputy Speaker be elected prior to voting being done on the vote of no-confidence against the Prime Minister.

Away from the stipulated procedure, opposition political leaders have hinted at the idea that they plan to win a vote of no-confidence against the Prime Minister by getting a number of people to defect against the ruling party. In particular, keeping in view that Prime Minister Imran Khan got 178 votes in his vote of confidence last year, the opposition parties will need to get at least 7 members of the ruling party (or coalition) to defect.

This is not as simple as it sounds. If one of the coalition parties (having more than 7 members) shifts its alliance, the Prime Minister will certainly be out. And the opposition will be able to form a government (through 172 votes) in the aftermath. But if the plan is to get people of PTI to defect—either from Jehangir Tarin’s group or otherwise—such members of the National Assembly will be hit by the defection clause of Article 63-A of the Constitution. In particular, this constitutional provision states that any member of the National Assembly, who votes or abstains “contrary” to “directions issued by the Parliamentary Party”, in “election of the Prime Minister”, or “vote of confidence or vote of no-confidence”, or “Money Bill or a Constitutional (Amendment) Bill”, such member “may be declared” to have “defected”. And, upon such defection, such member shall “cease to be a member of the House and his seat shall become vacant”, in accordance with the stipulated procedure.

So, back to the issue at hand, if 7 members of the ruling party defect during a vote of no-confidence, they shall stand disqualified, and cannot later vote in favour of the opposition for election of the new leader of the House. Thus, in the circumstances, no party will have enough members to gain the requisite 172 votes for electing a Prime Minister.

What would happen next? No one really knows. In all likelihood, the assemblies will be dissolved, and general elections would have to be called.

But if this is the end goal of the opposition political parties, what is the point of the entire exercise? Instead of following such complicated procedures, the opposition political parties can simply resign from all their seats in the National and Provincial Assemblies, thus forcing the government to call general elections. And yet, this option—much simpler in nature, and resulting in the same conclusion as a vote of no-confidence—is not one that the opposition leaders want to pursue. Why? Well, because not all members of their party are willing to resign from their seats. And yet, we are being told that they are all willing to call for general elections?

These are convoluted issues of governance and constitutionalism. It is not so relevant who remains or becomes the Prime Minister. That is just an issue of the here and now. The political leaders would do well to war-game this issue till the very end. If the vote of no-confidence succeeds, what will happen next? No government will exist in Pakistan? A general election will have to be called? And if that’s the goal, can the opposition parties not force the general election through collective resignations?

Let us pause here, and reevaluate the political strategies, in a manner that does not create unnecessary constitutional and governance vacuum.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be contacted at Follow him on Twitter

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