What does the law say? Explainer

Lawyer Salaar Khan (@Brainmasalaar) weighed in on the legal nuances of the dismissal of the vote of no-confidence by Deputy Speaker Qasim Suri, and the dissolution of assemblies by President Arif Alvi, in a Twitter thread, compiled below:

“Instead of allowing the vote [of no-confidence] to proceed against the prime minister, the deputy speaker dismissed the resolution. After this, the president was able to dissolve the National Assembly on the PM’s advice. Under Article 58 of the constitution, the president may dissolve the National Assembly on the PM’s advice”. Article 58 states: “The president shall dissolve the National Assembly if so advised by the prime minister; and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the prime minister has so advised. Explanation: Reference in this Article to ‘prime minister’ shall not be construed to include reference to a prime minister against whom a notice of a resolution for a note of no-confidence has been given in the National Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly.”

However, a PM “against whom a vote of no-confidence ‘has not been voted upon’ cannot ask the president to dissolve the House”. To get around this, “the deputy speaker first ‘dismissed’ the no-confidence resolution submitted against the PM. He did this on the basis of a personal interpretation of Article 5, which provides for loyalty to the state. The rather feeble argument here was that because the letter that Pakistan had received from the US suggested a regime change would improve relations, the vote of no-confidence motion, itself, was anti-state”.

Article 5 read in its entirety says: “(1) Loyalty to the state is the basic duty of every citizen. (2) Obedience to the constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan”. The thread points to the obvious irony in this: Article 5 asks for obedience to the constitution — which “was arguably violated in the process of the dismissal of the no-confidence motion”. Looking at procedure, “a ‘motion’ for no-confidence is first moved and, if leave is granted, it becomes a ‘resolution’. Under the Rules of Procedure in the National Assembly, there is no provision that actually allows a speaker or deputy speaker to dismiss a resolution”.

The role of the speaker is clearly defined in Schedule 2 of the Rules of Procedure in the NA, “and is essentially limited, in a vote of no-confidence, to announcing the result and so, because the speaker can’t dismiss a resolution for a no-confidence vote, there is still a vote of no-confidence that has not been ‘voted upon’ by the prime minister. Consequently, the PM could not have advised that the assembly be dissolved under Article 58”.

Expanding on the role of Article 6: “In fact, in doing so, it may even be argued that he not only violated Article 5, by not obeying the constitution, but also subverted the constitution under Article 6”, which though “is often used rather flippantly in common parlance”. [Article 6 reads as: “any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.”]

The final question is what the SC can do in all this, especially in terms of Article 69, which places conditions on courts from interfering in certain parliamentary proceedings.The thread explains: “the SC has laid out exceptions to this bar. Courts can interfere where there is not an ‘irregularity’ but a ‘patent illegality’, where there is clear mala fide, or where the matter in question affects the composition of the house, itself (such as in the Farzand Ali case)”. But, while the SC may well find that it can interfere, how far it will go is another question. The thread concludes that, although in theory “the SC could find the dissolution to be without legal effect and even order voting to resume on the vote of no-confidence, given recent patterns, that may be a long shot”.