Legal fraternity's take on dissolution of provincial assemblies

KARACHI: While almost all lawyers and legislative affairs experts agree that a chief minister has the prerogative to ask the governor to dissolve a provincial assembly, there is a chance that the matter in the case of Punjab at least could end up in the courts.

Journalist and lawyer Muneeb Farooq said: “Article 112 is pretty straightforward: any chief minister against whom a vote of no-confidence has been issued cannot advise the governor to dissolve the assembly. In the case of the Punjab Assembly, no notification has been issued against Elahi for a vote of no-confidence because the session has been going on for a while and has not been prorogued and so, the resolution for the motion of a vote of no-confidence has not been tabled. And, since the resolution has not been tabled, the notice has not been issued so technically the chief minister can dissolve the assembly but this may go into the court at the end of the day."

Farooq said that to table a motion of a vote of no-confidence, the session has to be a fresh one, not the existing one. And for the matter to end up in the court, it would take the opposition to “turn around and say well we had our resolution ready but because the session wasn’t prorogued and a fresh session wasn’t called for this particular purpose, we were not able to table a motion of VONC...This is a very important point. So, technically yes the assembly can be dissolved but there will be a problem. I think this will end up in the courts."  

Supreme Court advocate Salman Raja said that “it is not a [provincial] government that is dissolved [in such a case], but the assembly that stands dissolved and the provincial government is then dissolved as a consequence of the dissolution of the assembly.”

Raja added that a chief minister can, however, “not dissolve an assembly if there’s a pending vote of no-confidence against him/her”. On whether there is a bar to how many times in a few months a vote of no-confidence can be tabled against a sitting chief minister, Raja clarified that there is no longer any bar on that though previously a vote of no-confidence could not be held against a CM twice in six months.

Raja also said that after the Supreme Court's recent rulings, party members are bound to follow the parliamentary party’s decisions. He said, “In any case, it is the CM’s prerogative to ask the governor to dissolve the assembly — in which case the governor just has to do so.”

PILDAT President Ahmad Bilal Mehboob agreed that the Constitution stipulates that an assembly cannot be dissolved by a CM if a no-confidence motion is pending. 

Explaining the process after the dissolution of an assembly, Mehboob said: “Submitting a motion for no confidence against a CM will make it impossible to dissolve the assembly till the time the motion is pending. Once the assembly is dissolved, the constitution requires a fresh election of the assembly within 90 days. Each assembly can be elected separately and there is no constitutional provision that elections to all assemblies are to be held simultaneously."

“If the PTI members resign from the Punjab and Khyber Pakhtunkhwa assemblies, technically the assemblies can continue to function and a new CM can be elected but since the opposition in KP Assembly has only 33 per cent seats, it may look odd politically so governor’s rule is also a possibility. In the Punjab Assembly, the PML-N and allies have a little less than 50 per cent seats so it will be relatively easy to manage a government in Punjab if the PTI resigns," he added. 

On whether any resignations tendered will be accepted or whether it could go the way it did in the National Assembly, Ahmad Bilal Mehboob said that since the speakers in both the Punjab and the KP assemblies are also from the PTI, “they will not sit on the resignations like is the case in the NA at present. If resignations are processed and sent to the ECP, by-elections will become inevitable. Holding by-elections on such a large number of seats will not only be very expensive, it will also be politically embarrassing”. Mehboob is of the opinion, “It is still possible. It is a test of nerves and only time will tell who blinks first”.

Lawyer Abdul Moiz Jaferii concurred with the restriction posed by a vote of no-confidence and said that “the PML-N would have to move a motion for no-confidence before [in the case of Punjab] CM Chaudhry Pervez Elahi writes to the governor”. Jaferii, however, feels that: “Elahi will engineer precisely this outcome — so as to make himself unable to fulfil Khan’s wishes even if they are formally put to him in this manner.”

According to high court advocate Abuzar Salman Khan Niazi, “As per Article 112, once the CM tenders his advice [for a dissolution of assembly], the provincial assembly stands automatically dissolved after 48 hours. This can be done before that if the governor dissolves it earlier.” He too added that if a no-confidence motion is notified, the CM cannot act on dissolving an assembly.

Originally published in The News