Get-Senate mission seems impossible

ISLAMABAD: There are more risks involved than gains to be accrued if the Khyber Pakhtunkhwa legislature is dissolved to engineer a crisis with the objective of blocking election to half of the Senate in March to deprive the Pakistan Muslim League-Nawaz (PML-N) of its impending majority in this chamber.

The get-Senate mission to create a mess seems quite impossible to be accomplished because any desperate move will result in jeopardizing the likely significant advantages to be secured in adhering to the constitutional term of the provincial assembly. 

A lot of speculation is going on, hinting at the next target that Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan may opt for to make a dig at the PML-N as well as the system.

The assault is being talked about as an issue made out of a non-issue of population census fizzled out, with the Pakistan People’s Party (PPP) reaching instant consensus with the federal government on passing the constitutional amendment bill to pave the way for timely general elections on the basis of the new data.

The lingering blockade of the federal capital by a religious group is also part of the multi-pronged strategy to spawn chaos to make the democratic applecart topsy-turvy.

Ironically, one faction of the same religious camp staged a weeklong sit-in at  the Jinnah Avenue that ended peacefully. Four days later, the second group embarked on a similar protest. So, the constant attempts to besiege the federal government are under way even after the ouster of Nawaz Sharif as the prime minister.

At present, the PTI has seven senators, who were elected in 2015 marking their debut in the Upper House of Parliament. Of them, only one, Azam Swati, who made it to the Senate, will retire in March 2018 along with another 51 senators. The remaining six PTI members will hold office till 2021 with each of them having a six-year term starting from 2015.

A huge benefit that the PTI will reap by having the KP assembly in place in March 2018 is that it will get another five or six senators elected by the same legislature, given its numerical position along with that of its coalition partner, Jamaat-e-Islami. The ruling alliance enjoys support of 70 (or 56.91pc) provincial lawmakers including 61 MPAs of the PTI, seven of Jamaat-e-Islami and two independents. Thus, the total PTI power in the Senate after the March election will come around 12.

A great risk in dissolving the assembly is that the PTI may not be able to maintain even its present position in it in the next direct election. In that case, it will be a loser as far as the number of its seats in the Senate is concerned. While Imran Khan may believe that he will get more seats in the KP Assembly in the next polls, many in his party and others may not agree with him. Snap election for any political party is always a dangerous affair and that is why almost everyone  avoids it and prefers to enjoy its already available full term in office.

In case Imran Khan orders Chief Minister Pervez Khattak to prematurely wind up the assembly, some important factors have to be taken into account. One, will Khattak obey the call? His record is witness that he had aggressively opposed resignation of PTI MPAs from their seats during the 2014 sit-in. Two, what will be the reaction of the Jamaat-e-Islami and two independents who have enabled the PTI to form the government. Certainly, they will oppose any such adventure. Similarly, the entire opposition will be up in arms against such a move.

Third, since the intention of such dismissal will be to torpedo the Senate election, the dissolution will be challenged in a superior court, which will have to see the real motive behind it. Four, Khattak will, like before, try to get maximum of his favourites elected as senators and will abhor being robbed of this advantageous position. He may stick to the principle “a bird in hand is worth two in the bush”. Additionally, it will also not be certain for him to get the same top provincial office after the election following the untimely dissolution of the assembly considering a number of aspirants who would be in the race then.

After sensing that the chief minister is about to dissolve the assembly, the opposition will definitely move a no-confidence motion against him. It will stop him from reading the obituary of the assembly because a chief minister facing no-trust resolution can’t bury the legislature under the constitution.

The announcement of the schedule for election to the Senate by the Election Commission of Pakistan (ECP) is unlikely to put a break on a chief minister to liquidate the assembly. This is a grey area as nothing is specified in the Rules of Procedure and Conduct of Business in the Senate.

The rules prescribe the stages for such election, spanning some two weeks. According to them, the ECP will issue a notification to organize the election. It will also simultaneously fix the last date for making nominations, which shall be the second day after the publication of the notification; the last date for publication of the names of the nominated candidates, which shall be the day following the last date of filing of nominations; the last date for the scrutiny of the nominations, which shall be the third day following the last date for making nominations; the last date for filing of appeals against acceptance or rejection of nominations, which shall be the second day following the last date for the scrutiny of nominations; the last date for publication of the revised list of candidates, which shall be the day following the last date for decision of appeals; the last date for the withdrawal of candidature, which shall be the day following the last date of publication of revised list of candidates; and the date on which a poll shall, if necessary, be taken, which shall be a date not earlier than the seventh day after the publication of the revised list of candidates.

Whether the chief minister advises knocking out of the assembly or the legislature is dissolved by the provincial governor in his discretion in a certain situation, the procedure for appointment of the next caretaker chief minister is similar under the constitution. The outgoing chief minister and leader of opposition in that assembly will be the main consultees in such nomination.

Clause 3 of Article 105 says where the governor dissolves the assembly, notwithstanding anything contained in clause 1 (Subject to Constitution, in the performance of his functions, the Governor shall act on and in accordance with the advice of the cabinet or the chief minister), he shall appoint a date, not later than ninety days from the date of dissolution, for the holding of a general election to the assembly; and appoint a caretaker cabinet.

If the governor dissolves the assembly as advised by the chief minister, he will be acting on the latter’s advice. Therefore, he will pick up the caretaker setup in consultation with the outgoing chief minister and opposition leader.

However, if he disbands the legislature in his discretion only if a chief minister has been voted out and no other MPA is able to win the majority vote from the assembly, he will appoint the caretaker government on his own without consulting the voted-out chief minister and opposition leader.

Senior constitutional experts, top Senate leaders and former secretaries of the Election Commission of Pakistan (ECP) The News talked with say a tricky constitutional situation will arise if a provincial assembly is prematurely dissolved to sabotage the upcoming Senate. They hold somewhat similar opinion on the emerging crisis, but they also differ on some points in the event of early termination of a provincial legislature.

When contacted, eminent legal mind Barrister Wasim Sajjad said that in case of premature dissolution of a provincial assembly, there is no impediment in the election of senators from the remaining legislatures. After the direct poll to the dissolved assembly, senators from that province will be elected subsequently, he said.

However, he said that during this intervening period the Upper House will be incomplete and remain suspended, unable to do any business. It will not be in a position to elect its chairman and his deputy, he said, adding that such a situation has never emerged in Pakistan.

On condition of anonymity, a top Senate leader agreed with Wasim Sajjad saying that the existing provincial assemblies will elect their quota of senators while dissolved legislature will do the same after the direct poll to it. He said that the positions of the new Senate chairman and his deputy elected by an incomplete Upper House may be challenged in a court of law, and that even a stay may be sought from the highest judicial forum to halt the election to the Senate till poll to the disbanded provincial legislature is held.

In such a scenario, the Senate leader said, the Upper House will be unable to function and complex constitutional crisis will hit the landscape. The whole situation, he believed, will need an interpretation by a court of law.

A former ECP secretary said on the condition he should not be identified that since a province, for having no electoral college in existence, will be deprived for the time being from representation in the Senate in which all the federating units have equal numerical say, the Upper House will be practically rendered dysfunctional.

Former ECP Secretary Kanwar M Dilshad said that the election to half of the Senate must be held simultaneously because all the federating units should have equal representation in this chamber all the time. He felt that in case of dissolution of a provincial assembly, the Senate election has to be postponed till the time this legislature comes into existence to serve as the electoral college for its province.

However, Dilshad said that even if half of the Senate existed because of postponement of the election owing to dismissal of one provincial assembly, it would continue to function after electing its new chairman and his deputy. The reason is that even this incomplete Senate will have equal representation from all the provinces.

The incumbent Senate chairman and his deputy, along with 50 Senators, will retire in March after completing their mandated term of office. They will be unable to function as such because of expiration of their tenures.