With his house of cards collapsing, can Pakistan’s PM find respite in a legal loophole?

Last year, the premier urged lawmakers to use their 'democratic right'. Now, he wants to make it illegal for them to do so.


March 21, 2022

ISLAMABAD – At around the same time last year, Prime Minister Imran Khan put himself up for a litmus test in Parliament, where he asked the honourable members to decide whether he should stay on as the leader of the House or resign.

In a video clip tweeted by journalist Hamid Mir from March 4, the premier can be heard telling lawmakers that he would be turning up for a vote of confidence from them, where they will be able to raise their hands and declare whether he was fit to lead them. “This is your democratic right,” says the premier. “You can say you are not with Imran Khan. I will respect you [and think] okay, I am not competent,” he added.

When the vote did take place, 178 lawmakers raised their hands for Prime Minister Imran — two more than had originally elected him to the top slot.

Exactly a year on, the prime minister no longer seems confident in the lawmakers’ confidence in him. In fact, after seemingly losing some umpiring support to what was once his original rallying cry — that of neutral umpires — we see a very different prime minister.

The new Imran Khan no longer thinks it is the lawmakers’ “democratic right” to decide whether he is fit to lead them. Now, as the PTI’s defectors enjoy the opposition’s hospitality, the premier would have you believe that anyone who votes against him has sold themselves out — an allegation being screamed by the premier in public rallies and by his coterie of advisers and still loyal ministers, in very colourful language, on national television.

The premier, meanwhile, is being advised raids upon state houses in the capital, imposition of governor’s rule in Sindh, and the pre-disqualification of possible errant members of his party, before they express what until last year was their democratic right.

So how far can the prime minister legally use any of these strategies to prevent his house of cards from collapsing?

Emergency and Governor’s rule
Our Constitution contains emergency provisions, and Article 232 allows the president to issue a proclamation of emergency that requires certain conditions to be met in his mind. According to the Article, the president must be satisfied that an emergency exists in which the “security of Pakistan or any part thereof is threatened by war or external aggression or by internal disturbance beyond the power of a provincial government to control”.

Even if the president was to express such a satisfaction after explaining himself as to why and how, and presuming that Arif Alvi doesn’t think an emergency is warranted due to a threat of war or external aggression, any emergencies claimed due to internal disturbances usually require a supporting resolution from the provincial assembly of the province concerned.

If the president decides to act on his own without such approval through resolution, such a proclamation of internal disturbances emergency will be required to be placed before both Houses of Parliament, for approval by each House within 10 days. Throughout this time period, the high court of the province shall continue to function.

Any attempt at explaining the need for an emergency declaration due to ‘internal disturbances’ will clearly smack of malice and with several statements from relevant ministers on the record showing that their true aim is to thwart a vote of no confidence, should not survive its first brush with a court of law. It is perhaps this realisation that has led to Sheikh Rasheed’s summary of reasons seeking emergency rule in Sindh never seeing the light of day. The prime minister has seemingly decided to move on to other adventures.

The other method through which meaningful governor’s rule can bypass the provincial assembly is by way of Article 234, where the governor of a province can report to the president that he is satisfied that the governance of a province cannot be carried out “in accordance with the provisions of the Constitution”.

Similar to the other emergency allowance, this too will require reasoning and will very quickly look like a bludgeon designed to dislodge the Sindh government, badly disguised as an attempt to preserve the Constitution.

Horse trading ordinance
Though not officially communicated by any PTI leader, talk of a possible presidential ordinance against the practice of “horse trading” has been making the rounds on social media.

It is difficult to speculate what form this attempt would take, but it would risk violating the fundamental freedoms of expression and association if it sought to go beyond the already stringent and undemocratic restrictions created by Article 63-A.

Coupled with the Articles 62 and 63 morality clauses, there really isn’t much to add unless the government decides to penalise lawmakers based on a likely approximation of their intent. If this does come to pass, this government could also use the same logical tools to bin our justice system and replace the process of evidence and trial with palmists and astrologers.

Added to these problems is the cherry on top that it would be by ordinance. This might be the final straw that breaks this undemocratic legislative process’ back.

Ordinances have been long derided as being a democratically deficient tool that create a parallel legislative process. This effectively short-circuits the representatives of the people and their ability to debate and create law through the fiction of emergent need. An ordinance at this juncture, attempting to subvert a vote in the assembly itself, would perhaps be too much for even our hybrid system to stomach.

Approaching the Supreme Court for 63-A
Of all the wild strategies being thrown about, this one has gathered the most official steam — that the Article 63-A disqualification on grounds of defection be taken to the Supreme Court for interpretation, with the government asking whether such disqualification can be triggered preemptively.

The Constitution is usually a skeletal document, which contains the general outline of the will of the people; upon which ordinary legislation adds flesh. However, so important was the need to keep lawmakers in check on the part of our dynastic political parties’ leadership, that this particular clause is meticulously detailed.

Instead of removing the vague morality articles — 62 and 63 — from the Constitution, which conflated sin, crime and suitability for public service and were always a weapon waiting to be used; the political leadership at the time of the 18th Amendment decided to push in Article 63A. Without democracy within their own parties, they made it obligatory for their party members to show loyalty to their leadership.

Read more: Can Article 63-A be invoked before no-trust vote?

However, there were limits to automating a legislator. Even if you were preventing a lawmaker from voting against the party line in a confidence motion, in the election of a prime minister or on a money bill as the Article explains, you cannot treat them like errant drones, liable to being shot down upon first sign of indiscipline.

Hence, a process of showing cause was embedded in the disqualification Article, where the party leadership could only declare a member of the assembly as having defected after giving them an opportunity to explain themselves. This would obviously come after the act of defection had taken place.

If the defecting member were to show cause and explain that they genuinely felt their party leader had moved away from the party line as promised in their manifesto, and that there had been no meaningful debate within the party before this change of direction was made, who would be more in the wrong?

The member for defecting upon such principle, or the party head for wanting to disqualify them? What if the defecting member highlighted the recent tumult within the PTI which led to all party leadership roles being reshuffled without any hint of the once promised intra-party elections? What if the member stated that this democratically deficient process had taken away their ability to protest by way of internal vote against their party’s change in policy or deviation from manifesto, forcing him to vote against his leader in the only other forum where he or she were able to express their lack of confidence?

Analysis: ‘Threat of disqualification’ may backfire for PTI

The PTI is attempting to stretch the understanding of defection beyond the three methods noted in the Constitution, to include the defiance of party orders to not show up at all on the day of the no-confidence vote. It is citing statements given on the media as proof of future intent on the part of these rebel members of their own party.

It is in effect, trying to reduce a member of their party in the National Assembly to the status of a sheep under their lone shepherd. This is the same sheep their shepherd had promised to remove once and for all from Parliament, and to replace them with assembly members who were free to exercise their democratic rights such as vote on their confidence in their leader.

The oath taken by a member of the National Assembly obligates him or her to serve honestly, faithfully and to the best of their ability. This service is a promise to Pakistan in general, and the member’s electorate in particular.

The Constitution allows for the expression of no confidence in the leadership of the House. Although it separately carries the 63A disqualification for those members of a party who vote against their own leadership, it does not bar such a vote from being cast precisely because it envisions such dissenting votes as a necessity in bringing down a leader who has lost the confidence of a House despite his or her party being in a majority.

When it came time to the last Senate elections, those members of parties other than the PTI who voted for its candidates were called conscientious and guided by an inner moral compass by the same PTI who calls its own errant members sellouts and prostitutes today. Earlier, the member’s ability to vote according to their conscience regardless of party affiliation was heralded as a sacred right which must be protected.

We have all seen in the past few days what the government is capable of doing. It has bullied allies where it should have cajoled them; responded to dissent amongst its own party members with threats and ultimatums. We have also seen the viable options for the prime minister, if he is to survive a vote of confidence, dwindle with each passing day.

Perhaps he sees something we are not able to perceive; perhaps there is a trick up his sleeve that we do not know of. As Sheikh Rasheed loved to remind us annually right before Eidul Azha during the PPP government, there was a likelihood of a qurbani se pehlay qurbani [sacrifice before a sacrifice].

Might there then be a sacrifice before the sacrifice?

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