Assembly dissolution debate starts as Azadi March nears

Source: Published in Politics on Monday, August 4, 2014

As the “Azadi March” of Pakistan Tehreek-i-Insaf is scheduled to be held on Aug 14, PTI chairman Imran Khan and several of its leaders have stated on different occasions that they might also dissolve the Khyber Pakhtunkhwa Assembly for putting pressure on the federal government for the acceptance of their demands.

Furthermore, they stated that one of the options with them was to tender resignations from the National Assembly as well as provincial assemblies.

The PTI’s Core Committee had on June 25 empowered Imran Khan to direct the chief minister of Khyber Pakhtunkhwa to dissolve the Khyber Pakhtunkhwa Assembly if the federal government did not accept its demands.

Prior to that Imran Khan had given a statement that the assembly would be dissolved if his demands were not met.

That statement had drawn criticism from the opposition parties in Khyber Pakhtunkhwa Assembly. Similarly, Chief Minister Pervez Khattak has also endorsed the views of his party chief on different occasions.

The threat of dissolving the assembly has even forced the Jamaat-i-Islami and Awami Jamhoori Ittehad Pakistan (AJIP), the two coalition partners of PTI, to publicly oppose the assembly dissolution at a joint press conference on Sunday. JI chief Sirajul Haq and provincial senior minister Shahram Tarakai of AJIP stated that they were opposed to any move of dissolving the assembly, however adding that PTI had the right to quit the government.

Legal experts believe that if PTI is serious about dissolving the assembly the option available with other parties averse to that move would be to submit a notice for moving a resolution for a vote of no-confidence against the chief minister.

The chief minister could advise the provincial governor to dissolve the assembly under Article 112. Sub-article 1 of Article 112 states: “The governor shall dissolve the provincial assembly if so advised by the chief minister; and the provincial assembly shall, unless sooner dissolved, stand dissolved at the expiration of 48 hours after the chief minister has so advised.”

An explanation to the said sub-article states: “Reference in this Article to ‘chief minister’ shall not be construed to include reference to a chief minister against whom a notice of a resolution for a vote of no-confidence has been given in the provincial assembly but has not been voted upon or against whom a resolution for a vote of no-confidence has been passed.”

Another mechanism for the dissolution of assembly is available in sub-article 2 of Article 112 under which the governor may dissolve an assembly when no member of the provincial assembly commands confidence of majority of the members of the assembly.

That sub-section states: “The governor may also dissolve the provincial assembly in his discretion, but subject to the previous approval of the President, where a vote of no-confidence having been passed against the chief minister, no other member of the provincial assembly commands the confidence of the majority of the members of the provincial assembly…”

Article 136 of the Constitution provides for the mechanism for a no-confidence against a chief minister. Article 136 (1) states: “A resolution for a vote of no-confidence moved by not less than twenty per centum of the total membership of the provincial Assembly may be passed against the chief minister by the provincial assembly.”

Clause 2 of the same Article provides that a resolution referred to in Clause 1 shall not be voted upon before the expiration of three days, or later than seven days, from the day on which such a resolution is moved in the provincial assembly.

If the resolution is passed by a majority of the total membership of the provincial assembly, the chief minister shall cease to hold office.

The most famous example of premature dissolution of the Khyber Pakhtunkhwa Assembly on the advise of the chief minister was in 1993 when then governor Amir Gulistan Janjua ordered the dissolution of KP (then NWFP) Assembly on the advice of then chief minister Mir Afzal Khan.

That dissolution of the assembly was challenged before the Peshawar High Court by then ANP leader Begum Naseem Wali, a leader of PML Nawabzada Mohsin Ali Khan and then Speaker of the assembly Habibullah Khan Tareen. They alleged that Mir Afzal had lost confidence of the majority of the members and the majority members had submitted a notice for a vote of no-confidence at the residence of an additional secretary of the assembly. However, the high court bench, headed by then chief justice Abdul Kareem Kundi, dismissed those petitions and upheld the assembly dissolution.

Similarly, in Oct 2007, then chief minister Akram Khan Durrani advised the governor to dissolve the assembly.

The assembly had to complete its tenure in Nov 2007. Subsequently, the governor dissolved the assembly on Oct 10, 2007.

Experts believe that in case PTI does not opt for dissolution of the provincial assembly and instead its MPAs resign then it would be binding on the Election Commission of Pakistan under Article 224 to conduct by-elections in those constituencies within 60 days of the occurrence of those vacancies.

However, that would be possible only if after resignation of all the 55 MPAs of PTI any of the remaining members in the assembly enjoy confidence of the majority of the total membership of the assembly.

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