Dr. Ishrat Hussain rightly advocates in his book “Governing the ungovernable” that the biggest lacking in the nascent democracy of Pakistan is the process of institutionalization. The same appears in the form of the current political and constitutional crisis prevalent in the country. The reliance on systems and institutions has failed to replace the reliance on personalities, including for personal political gains, to date.
Predominantly, we borrowed the Westminster Parliamentary system of Britain. On one hand, there is a democratic convention of following strict party discipline following democratic values since the candidate, most of the time has been elected while representing the manifesto and name of such political party. While on the other hand, to maintain accountability on the executive branch and the chief executive in particular, there is the constitutional process of “no-confidence motion” as well. Probably the most famous no-confidence motion was on the night of the 28th of March, 1979, when Jim Callaghan’s Labour Government fell from office by one vote, 311 to 310, in what was described by the BBC as one of the most dramatic nights in Westminster’s history.
Understanding the matter better
Similarly, Art. 95 of the constitution of Pakistan, affirms the right of legislatures to dismiss the PM through no-confidence motion by simple majority. It is, most of the time, possible only when the members of the ruling majority vote against the government. Hence, as long as, any member of the National assembly is not disqualified by the election commission or supreme court of Pakistan, the speaker is bound to count and consider his vote as valid.
For an offense to be committed, two things need to be established that are the actus reus and men’s rea. Public interviews of the rebellious members can suffice to prove defection mens rea, as stated in Art. 63 A, but its actus reus demands the actual voting. The relevant article in amendment 14 had the space to initiate proceedings on the basis of these public interviews against such members because, in addition to the act of voting, it also included “commits a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies”. But 18th amendment quashes such possibility.
Even after breaching of Art. 63 A, there is a constitutional process that needs to be followed and takes time. It ensures the right of the accused member to be heard and present a reasonable defense. The election commission can, even after the party head’s direction, decides in the favour of the member – on which the party has right to appeal in the supreme court of Pakistan.
Another possible course of action, the ruling party can exercise, is filing criminal proceedings against the members of taking bribes. If they prove it and the members get convicted even from the court of first instance, their parliament membership can be canceled under Art 63 (1)(h).
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Anyhow, the above-stated processes need a specific time
On the other hand, the speaker is constitutionally bound to summon session within 14 days on a requisition, under Art. 54 (3), and then conduct voting on the no-confidence resolution within 7 days as stated in Art. 95. The prior 14 days were completed on the 22nd of March.
The last hope of the ruling government, after considering this time constraint, is the supreme court construing Art. 63 A in a way to declare the possibility of any preventive course of action as valid. This, if happens, would be a judicially daring and active decision. However, historically, the courts have shown restraint in curbing the significant right of member parliament to vote on such grounds.
A Landmark example is the recent supreme court judgment, on the reference filed by the President under Art. 186, regarding preventing horse trading in the Senate elections. The supreme court maintained the process of secrecy in balloting and considered every vote as valid. But at the same time, it directed the election commission to deal with the menace of ‘horse trading’ and to keep votes traceable. But this time, the government wants more than this.
Having stated my legal opinion, the British concept of equity and practical fairness needs to be considered as well. The open bribing by the public representatives, is expected to be of good and exemplary moral character, as stated in Art. 62 & 62, must be stopped and discouraged. They should not take advantage of the procedural delays stated above. Exemplary punishment, such as a disqualification for life and imprisonment for giving and taking bribes, must be executed.
Taking a democratic perspective, the elected members of the National assembly of Pakistan get votes representing the political party and its manifesto. What about representing the will of the votes given purely to the party? The moral and democratically upright position would have been, if the members had lost faith in their party, they should have resigned and contested elections again as independent candidates or on the ticket of other parties.
The government and PM Imran Khan need to show political acumen and capability to settle this constitutional and political crisis. This can include calling early elections and ascertaining the current will of the public. The opposition has diverted the public’s focus from the inflation and provided PM Imran khan a space to form a sound political argument of not having the opportunity to complete his tenure.
The opposition has done this because of two possible reasons, either they were convinced that the government is going to perform in the last year or they had some assurances from the international, especially west, establishment. Whatever happens, in the end, democratic institutions need to win.
The writer is a practicing lawyer. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.