No Way Out

According to the constitution, if an assembly is dissolved before the completion of its term, the ECP has to hold elections in that province

LAHORE: With the dissolution of the Punjab and Khyber Pakhtunkhwa Assemblies this week, the constitutional process is about to begin for the formation of a caretaker government in both the provinces, which will conduct the upcoming elections there.

According to the constitution, if an assembly is dissolved before the completion of its term, the Election Commission of Pakistan is bound to hold elections in that province within the next 90 days.

PTI Chairman Imran Khan have ensured the dissolution of both provincial assemblies as a tactic to put pressure on the federal government to dissolve other assemblies including the National Assembly and hold early elections in the entire country at the same time.

The leadership of the Pakistan Democratic Movement (PDM), however, has not yet given any indication that they intend to go for the general elections.

But the question remains that if the PDM government, under the leadership of the Pakistan Muslim League-N, does not hold elections in the country, what alternative do they have?

Can PDM stop the approval of the summary for dissolution of the Punjab Assembly? And if they intend to do so, what avenues do they have for it?

Prominent lawyer and constitutional expert Barrister Zubair Ahmed outrightly rejected the option of challenging it in the courts, saying there are no chances that the governor or the opposition parties will approach the court to stop the implementation of the Punjab Chief Minister’s summary because the courts will not do anything about it.

He said that the manner in which the Chief Minister of Punjab had sent the summary for dissolution of the assembly is a completely constitutional procedure and the constitution gives him full authority to do so under article 112.

“I don’t think the court can or will do a judicial review of the matter in such a case.”

When asked about the restoration of assemblies by the courts in the past, Zubair said at that time the situation was different beause the assemblies were dissolved either at the behest of the Governor or the President. For which, the courts conducted a judicial review of their action and the dissolved assemblies were restored.

He further said that after the 18th amendment in the constitution, the powers of the President and the Governor have been greatly reduced, while the powers of the Chief Ministers and the Prime Minister have greatly enhanced.

“In the current situation, after taking the vote of confidence recently, Chief Minister Parvez Elahi has sent a summary to the governor to dissolve the assembly using his constitutional authority.”

Constitutional expert Azhar Siddique also supported this position. According to him, there is no justification left for the PML-N and the opposition parties to challenge the summary of the dissolution of the assembly in the court.

“Chief Minister Parvaiz Elahi has sent the summary to the governor in a completely constitutional manner, he has not done anything unconstitutional.’

“Constitutionally, the Governor of Punjab has two days to approve the summary of the Chief Minister, because if he does not do so, the Assembly shall automatically stand dissolved after 48 hours.”

According to experts, PML-N and allied parties do not see a way to go to the court to stop the dissolution of the assembly.

When asked if the federal government can impose the Governor’s Rule in Punjab, Azhar said the time for that had passed.

According to him, this could have happened until the Chief Minister sent a summary to the Governor to dissolve the Assembly. A functional chief minister has a lot of powers. His authority can be stopped only if there is a no-confidence motion against him or, as happened recently, if the Governor asks him to take a vote of confidence. But once that vote of confidence has been passed, the CM gets back all his powers.

He said that the Chief Minister, after receiving the vote of confidence from the Assembly recently, did not leave any justification with the Governor on the basis of which he could recommend the federal government to impose Governor’s Rule in Punjab.

To a query whether the governor could send it back for summary review, Azhar dismissed the notion straightway and said Governor Punjab does not have the authority to do so. “According to article 112 of the constitution, the governor has to approve the summary from the Chief Minister within 48 hours.”

The formation of caretaker government

The legal experts clarified that as per Article 224 (1A) on dissolution of the provincial assemblies, the governor must appoint a caretaker cabinet in consultation with the chief minister and the leader of the opposition in the outgoing provincial assembly.

The government and the opposition, however, are currently at the loggerhead and it is a real possibility that they would not agree to consensus candidates. The constitution provides a solution, but not one that Imran Khan or his party would like.

In case the chief minister and the leader of the opposition donot agree, their nominations must within three days of the dissolution of the assembly be forwarded to a committee to be then immediately constituted by the speaker of the provincial assembly, comprising membership on parity between the outgoing members of the assembly from government and opposition.

However, in case the committee also comes to a stalemate, the names of the nominees shall be referred to the Election Commission of Pakistan for a final decision within two days.

It would be a million dollar question that with Imran Khan’s constant diatribe against the Election Commission of Pakistan in general and the chief election commissioner in particular, how will Khan and his party accept a caretaker chief minister appointed by the Election Commission.

Are new elections the only way out?

According to legal expert and lawyer Azhar Siddique, the PML-N and the opposition in Punjab have no choice but to go for new elections.  “In the current situation, the opposition can neither stop the dissolution of the assembly nor postpone it constitutionally.”

He added that the only way now is to go to the elections.

Comenting on the issue whether the elections will be held only in two provinces or in the whole country, journalist and analyst Ziaullah said that the matter will not be limited to the assemblies of Punjab and Khyber Pakhtunkhwa.

“I think the Kashmir assembly will also break. At the national level, I see early elections happening all over the country. These elections will be for the national and all provincial assemblies.”

However, constitutional expert Azhar Siddqiue said the term of all assemblies and senate is clearly given in the constitution. “This term begins when the members take oath after the elections in an assembly. And it is not written in the constitution that the elections of all assemblies in the country must be held at the same time. If an assembly completes its term earlier than the rest or it is dissolved, the Election Commission can conduct elections for only that one assembly,” he pointed out.

According to him, if the National Assembly is not dissolved, the Election Commission will conduct premature elections in Punjab within 90 days.

However, he believed that there will be immense pressure on the federal government to hold general elections after the dissolution of the Punjab and KP assemblies and it may crumble under that pressure.