Will the dissolution of the Punjab and KP assemblies force a general election? Legal experts weigh in

PTI chairman Imran Khan has orchestrated the dissolution of the Punjab and Khyber Pakhtunkhwa assemblies, a move he believes will push the country towards a general election.

With the Punjab and Pakhtunkhwa assemblies dissolved, will Khan’s gambit for snap elections materialise in the way he hopes it will?

Dawn.com spoke to some of the legal experts about it, and the short answer is that the dissolution of provincial assemblies “cannot force general elections” but there’s a great deal more nuance. Read on to find out more.

What do the dissolutions mean by law?

Barrister Asad Rahim Khan: Dissolution legally means an act of bringing to an end the assemblies. In certain circumstances, the chief minister can advise the governor to dissolve the assemblies.

The governor also may at his own discretion dissolve the assemblies if a vote of no confidence has passed and no other member of the assembly can command confidence to run it.

Lawyer Basil Nabi Malik: When an assembly is dissolved, in essence, it ceases to exist and function. As per Article 107 of the Constitution, the provincial assembly shall dissolve upon completion of its term of five years.

As per Article 112(1), the governor may dissolve the assembly on the chief minister’s advice. The assembly shall stand dissolved at the expiration of 48 hours after the CM’s advice.

As per Article 112(2), the governor may dissolve the Assembly (subject to the President’s approval) if the vote of no-confidence has been passed against the CM and no other member of the assembly commands the confidence of the majority.

Lawyer Abdul Moiz Jaferii: The notice of dissolution sent by Punjab Chief Minister Parvez Elahi, unless retracted, triggers a 48-hour window within which the governor must dissolve the assembly as per the advice received. If he fails to do so, the provincial assembly stands dissolved at the end of that time period.

Can the dissolution of assemblies force general elections? If so, how?

Asad Rahim Khan: No, it cannot force general elections on the federal level. Constitutionally elections are to be held in a stipulated period of time.

Convention has dictated from West Pakistan assemblies example onwards that it is ideal on an administrative basis that general and provincial elections coincide. That said there is no legal requirement.

Basil Nabi Malik: In terms of the Constitution, if the provincial assembly is dissolved, it does not automatically translate into a dissolution of the Parliament (for which specific provisions are separately available in the Constitution).

Abdul Moiz Jaferii: The dissolution of provincial assemblies creates political pressure but triggers no legal requirement for the National Assembly to follow in the same vein: whilst it might be better for the democratic process for a fresh mandate to be sought from the people, this is not a legal requirement.

If the assemblies are dissolved, what would it mean for the govt?

Asad Rahim Khan: Well it won’t have any significant impact on the Centre itself, fundamentally because the Constitution permits certain eventualities for the provincial assemblies to be dissolved and general elections held on a federal level to be conducted on a separate plain.

Basil Nabi Malik: If the provincial assembly is dissolved, the government would have to engage with the caretaker cabinet on the day-to-day affairs of the province till the elections are held and the new government is formed.

Supreme Court has held that the caretaker cabinet is only empowered to carry out only day-to-day affairs of the state and major policy decisions shall be left to the incoming government.

The caretaker cabinet is required to provide assistance to the Election Commission of Pakistan to organise free, fair, and transparent elections.

Meanwhile, while speaking to Nikkei Asia, Tabadlab CEO Mosharraf Zaidi said the dissolutions represent profound challenges to an already “weak, indecisive and fumbling” ruling clique in Islamabad and Rawalpindi.

“The only possible option now for the ruling clique is to announce a general election,” he said, adding that efforts to resist holding elections will therefore only deepen the country’s substantial and multi-pronged crisis.

“Elections are eminently possible, and will be largely free and fair if there is no deliberate manipulation by the military,” Zaidi said. “The key question is whether claims of the military seeking to disengage from politics are true or whether the allure of managing politics continues to shape the decision-making in Rawalpindi.”

On the other hand, Institute of Strategic Studies Islamabad’s research fellow Ahmed Naeem Salik said elections were critical to ending the political uncertainty that has been fueling the economic crisis.

“Foreign investors are reluctant to invest in Pakistan due to the uncertain political environment,” he told Nikkei Asia. “A new government after elections will be in a better and stronger position to steer the economy out of the crisis.”

Salik, however, added that holding snap elections would put huge short-term stress on the turbulent economy.

“With fiscal tightening and borrowing additional funds, the government can manage to hold general elections,” he said. “Elections are inevitable and need to be held even in the worst of times.”

Abdul Moiz Jaferii: The federal government will find its legitimacy further eroded with former prime minister Imran khan and his party now opting out of the system.

Will the government face difficulties in running the affairs of the country after the dissolution?

Asad Rahim Khan: Of course from an administrative and financial point of view, the conduct of provincial elections across two different provincial centres — Punjab and KP that constitute over 70 per cent of seats — would be a massive undertaking and would essentially keep the country in an uncertain sort of state for the next several months.

With that, you face difficulties in running the affairs of the country after the dissolution.

Basil Nabi Malik: In light of the political uncertainty in the country, as well as the economic downturn, the federal government may feel the pressure to follow suit and hold elections at the same time as the provincial assemblies.

However, with that said, having caretaker governments in KP and Punjab could be beneficial for the federal government in as much as such caretaker governments would tend to be easier to work than a political government with which it is at loggerheads, and furthermore, on account of the neutrality of the caretakers, the federation could expect better coordination and cooperation in regard to federal-provincial matters.

Abdul Moiz Jaferii: With Punjab now requiring a caretaker government, in the short term this might make it easier for the federal government to run affairs in the country through a pliant caretaker setup, but it will severely dilute the political legitimacy of decisions taken during this period.

Can the govt impose the governor’s rule in Punjab constitutionally and legally?

Asad Rahim Khan: Governor’s rule can be imposed subject to proclamations of emergency provided in article 232. There are also other provisions as regards a financial emergency which the current CM Punjab had hinted at but these are provisions that the SC has provided several declarations of law on and the intention of the executive upon whether an emergency can be imposed in any event.

Basil Nabi Malik: The powers to impose the governor’s rule are not unfettered and are restricted in nature. Governor’s rule can only be imposed in certain situations, and at this moment, none of those circumstances appears to exist.

Abdul Moiz Jaferii: What is colloquially referred to as Governor’s rule is actually the declaration of emergency by the president, and it can only be triggered where there is a threat of war or external aggression, or a similar scale of internal threat.

Further, such a proclamation requires a ratification of the move by the concerned provincial assembly. Where this isn’t possible, it requires ratification by both Houses of Parliament. In simple terms, it is a non-starter.

How long can NA Speaker Raja Pervaiz Ashraf stall the remaining resignations of PTI MNAs?

Asad Rahim Khan: Rule 43 of the rules of procedure in the conduct of business. The speaker has to satisfy himself with the genuineness and voluntariness of tendering resignations.

This means that the speaker is accorded a modicum of discretion as to whether or not those resignations are supposed to be accepted or not.

Basil Nabi Malik: Under Article 64(1) of the Constitution, the member of the National Assembly may by writing under his or her hand addressed to the speaker resign his or her seat, and thereupon, the seat shall become vacant.

In pursuance of this, the National Assembly has promulgated its own rules of procedure, which provide the speaker with powers to verify and authenticate that such resignations have been voluntarily given.

Currently, the speaker is utilising such powers to delay the process.

Abdul Moiz Jaferii: The National Assembly speaker had been delaying the acceptance of resignations tendered by PTI members without proper cause and simply as a means to retain the fig leaf of numerical legitimacy for the current coalition government. His actions are improper and without just cause.

Can the dissolution be used as an excuse by the Centre to delay the general elections in September next year?

Basil Nabi Malik: Once the five years period of the National Assembly and Province Assemblies is completed, they shall stand dissolved, and the process for elections shall commence.

Abdul Moiz Jaferii: General elections cannot be delayed beyond the expiry of the duration of the National Assembly which is stipulated in the Constitution as five years from the day of its first meeting. At the culmination of this time period, the assembly stands dissolved.

Can the govt impose an emergency to delay the elections?

Basil Nabi Malik: The emergency provisions in the Constitution have very limited application. Even if the emergency is imposed, the decision of the government is subject to judicial review, and as such, any imposition of emergency ostensibly for delaying by-elections may be set aside as unlawful.

Header photo: In this file photo, voters queue up to cast their ballots outside a polling station in Hyderabad on July 25, 2018. — APP