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Monday September 26, 2022

Checkmate

December 27, 2020

The recent declarations by the top leadership of Pakistan’s main political parties who have formed an umbrella alliance called the PDM – that they would resign from their seats in the national and provincial assemblies and resort to a long march to force the prime minister to resign – are legally aimless.

Let me take the issue of resignations first. Under the constitution, it is every member’s right to resign by informing the respective speaker. Normally this occurs if there is a scandal or if a political party member does not agree with their party’s policy. En-masse resignations have also been sometimes used to protest when there is no acceptable democratic constitutional framework governing a country. Whatever the reason, the spirit of democracy requires that the resignation must serve some clear legitimate ideal or purpose.

What would then happen if the opposition decides to resign from their seats in the national and provincial assemblies? The constitution provides the answer. It states that in case of any resignation, the Election Commission shall hold by-elections within 90 days in the relevant constituencies. During those 90 days, parliament and the provincial assemblies continue to function as before and, as long as at least one-fourth members of the relevant assemblies required for the quorum are present, the assemblies can even pass laws.

If the PDM leadership’s intent in resigning en masse is to stop the Senate elections, that too will not happen. Under the constitution and the elections laws made thereunder, each provincial assembly and the National Assembly are to elect their own senators. Assuming that all opposition members resign from provincial assemblies, then the remaining members in those assemblies are entitled to elect the senators. This will practically mean that almost 100 percent senators from at least Punjab and Khyber Pakhtunkhwa would be elected from amongst the PTI and its allies.

Let us examine the next possible move of the opposition to dissolve the Sindh Assembly – which some believe will affect the Senate elections because the electoral college would be incomplete. This argument is also fallacious. If the framers of the constitution had intended that the elections would have to be postponed on the dissolution of one assembly, it would have been provided expressly. The silence of the constitution is meaningful and deliberate. What will happen, therefore, is that senators can be elected from the Punjab, KP, Balochistan assemblies and the National Assembly by members who have not resigned, while by-elections will be held for the Sindh Assembly within 90 days. The new assembly will then elect senators from Sindh. This is because the Senate is not subject to dissolution.

The effect of resignations will be that till the next general elections, the opposition will be out of parliamentary politics, and the PTI government will have a free hand in making laws and governing, more or less without opposition. (When party-less elections were held under Zia, those who opted not to participate were eventually left out in the wilderness forever giving rise to a new breed of politicians, Nawaz Sharif was one of them). The government would also be able to bargain better with its allies. It is also quite possible that those who are not in favour of resignations would refuse to resign and enter into an alliance with the PTI. I am sure the PDM will also be thinking of this and wondering whether to take this option or not.

The other option which is being considered by the PDM is a long march to Islamabad. I was counsel for Dr Tahirul Qadri’s PAT during his joint dharna with the PTI. The then government of the PML-N wanted the Supreme Court to give directions to “remove” the dharna by force. The intention of the PML-N at that time was that if the court had passed any such orders then they could justify violence and blame any injuries, and even deaths, upon the opposition and the SC.

The Supreme Court had constituted a larger bench. I argued at that time that long marches were the fundamental right of every citizen and unless there was any violence from any side, the courts could not deny that right, and in any case it was an executive decision to allow or not allow dharnas and the government could not hide behind court directions to fire shots. I am glad the Supreme Court did not interfere.

No doubt protest is a legitimate right of the opposition. Similarly, a long march can also be accepted as a type of protest. However, the timing is wrong because the second wave of Covid-19 is rampaging through Pakistan and the world and it does not make sense to risk peoples’ lives by forcing them into huge gatherings. The opposition calls this “Political Covid”. I ask them to not believe the government’s point of view. However, they can believe doctors and experts who have no political affiliations and say the same thing.

If the opposition is hoping to topple the government, the history of movements in Pakistan will inform them that in street power vs elected governments, it is the latter which is always the winner – or it results in such chaos that the democracy gets derailed. For example, when a truly peoples’ movement led by the PNA against Zulfikar Ali Bhutto in 1977 ended in a military takeover that used the PNA leaders and showed them the door after hanging the popular prime minister.

To checkmate, the right strategy of the PTI is to absorb, tolerate and wait for the PDM’s inherent conflicting interest to either implode or make room for a dialogue at different levels with the opposition.

This brings to my mind what John Oliver, an English comedian and political commentator, had once said: “Democracy is like a tambourine – not everyone can be trusted with it.” Our political leaders have to prove that they can be trusted to run our cherished democracy.

For the time being, it appears that the leadership of the PDM cannot be trusted with playing the sitar of democracy. Perhaps more maturity will prevail in the opposition camp in the coming years.

The writer is a Supreme Court advocate, former federal minister for law and former president of the SCBA.

Email: ali@mandviwallaandzafar.com

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