Sunday Dec 18, 2022
PTI Chairman Imran Khan has announced the dissolution of the Punjab and Khyber Pakhtunkhwa assemblies as a tactic to put pressure on the government and the powerful quarters to force a general election in the country.
A general election would mean that elections are held to both the National Assembly as well as the four provincial assemblies simultaneously as defined in Article 224 of the constitution. However, as usual, it seems that Mr Khan and his party have not thought things through – not only in political terms, but also constitutional and legal terms, which is what we look at in this piece.
When the governor dissolves an assembly under Article 105 (3) of the constitution, s/he must appoint a date, not later than ninety days from the date of dissolution, for the holding of a general election to that assembly. This means that the elections will be held to that assembly alone, and not to the others, which would continue working until their terms expire or they are dissolved sooner.
Article 224 (2) cements this position by providing that when the National Assembly or a provincial assembly is dissolved, a general election to the dissolved assembly shall be held within a period of 90 days after the dissolution, and the results of the election shall be declared not later than fourteen days after the conclusion of the polls.
Even when the governor does dissolve the provincial assembly, his/her powers are only ceremonial in nature. The dissolution of the provincial assembly in Article 112 provides that the governor must dissolve the assembly but only if advised by the chief minister. In any event if s/he does not comply with the constitutional directive, the assembly is automatically dissolved after the expiration of 48 hours from such advice by the chief minister.
Let us not doubt the intentions of Chief Minister Punjab Pervez Elahi, who many claim will not tender such advice, and assume for one second that both the Punjab and Khyber Pakhtunkhwa chief ministers will follow Mr Khan’s instructions and tender such advice to the governor, even then there are two further legal troubles that Mr Khan and his party will face, other than of course the fact that the rest of the assemblies will complete their tenure and Mr Khan will have to wait till expiration of the tenure of the current National Assembly before he can hope to wear the prime minister’s sherwani.
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. What this means is that the election to the two assemblies within 90 days as iterated above will be held under caretaker chief ministers, but the federal government of Prime Minister Shehbaz Sharif and his cabinet will remain intact.
One can safely assume that with its historic narrative of "dhandli", this will not be a position acceptable to the PTI. Nevertheless, without considering this fact it seems Mr Khan is prepared to order the two chief ministers to dissolve the assemblies. Let’s be prepared for season two of the "dhandli" narrative.
The legal infirmities in the dissolution policy do not end at having elections for the two assemblies under the current federal government but in fact extend further. The respective governors are to appoint the caretaker chief ministers (who in turn will appoint their own cabinets) in consultation with the outgoing chief ministers and the leaders of the opposition.
The government and the opposition however are currently at possibly their worst working relationship and it is a real possibility that they would not agree to consensus candidates, as is evident from our constitutional history ever since such provisions were inserted in the constitution by the 18th Amendment, 12 years ago.
The constitution provides a solution, but not one that Mr Khan or his party would like. In case the chief minister and the leader of the opposition cannot 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 (ECP) for a final decision within two days. With his constant diatribe against the Election Commission of Pakistan in general and the chief election commissioner in particular, how will Mr Khan and his party accept a caretaker chief minister appointed by the Election Commission?
It seems, once again, as with the dissolution and the subsequent mass resignations from the National Assembly, the PTI strategy is not well thought out.
The writer is a Karachi-based barrister practising constitutional and administrative law.
Originally published in The News