The Deputy Speaker’s actions in the National Assembly on Sunday may have put a damper on the opposition’s attempts to oust Prime Minister Imran Khan for now, but they have immersed the country into yet another Constitutional crisis — one that is symptomatic of the complete breakdown of dialogue and communication between parliamentary forces — the treasury and the opposition.
This malfunction is yet again inviting judicialisation of politics, where parliamentary proceedings are now before the Supreme Court. The court may rule that Article 95, which deals with the vote of no-confidence against the premier, should have been enforced and that the Speaker’s powers — already provided for under Rule 37 and the Second Schedule of the NA’s rules of business — leave no room for adjudication on a motion. On the contrary, it may rule that the Speaker was in his right to dismiss the motion.
The three-member SC bench, that initiated suo motu proceedings hours after the NA session on Sunday, has already decreed that all orders and actions initiated by the prime minister and president regarding the dissolution of the National Assembly will be subject to the court's order.
The court has also asked the Attorney General of Pakistan to assist it on the question of constitutionality of the Speaker’s decision to invoke Article 5 and dismiss a motion pending before the Assembly. A larger bench that will take up the case today will now deliberate on whether the Speaker has the power to interpret Article 5 and invoke it at his discretion.
Everyone's a traitor
Where Article 5(1) provides a subjective criterion like "loyalty", Article 5(2) provides an objective test to substantiate that loyalty.
The latter sub-section requires all citizens, especially public office holders and those whose roles have been defined in the Constitution, to ensure its framework is adhered to and that is in fact the loyalty referred to in Article 5(1).
The role and powers of the Speaker are well defined as are those of members of the National Assembly, including the power to vote on a motion.
If the Speaker wanted to express his loyalty to the country, he should have adhered to the Constitutional mandate and allowed the NSC findings to be discussed during the debate on the vote of no confidence motion. He could have ensured that all honorable members of the National Assembly were privy to the matter and the government’s concerns.
But regardless of the treasury’s arguments, the opposition members have the constitutional power to vote on it as they deem fit. The Speaker yesterday robbed the elected members of the National Assembly of their constitutional right to vote and in doing so, violated Article 5(2).
When the Speaker dismissed the no-confidence motion, he basically declared that it was part of a foreign conspiracy, in turn charge-sheeting the 86 MNAs who had brought the motion into the Assembly on March 8. Must they now face disqualification for being party to these proceedings?
What's odd is that the entire proceedings in the NA on Sunday relied upon the findings of the National Security Committee, which in its press release does not even refer to the vote of no confidence. It only states that the language used in the communication or the cable received showed that there was “blatant interference in the internal affairs of Pakistan” by a foreign power.
Further, the press release stated that the premier would convene an in-camera session of the Parliament to take all the lawmakers on board regarding the contents of the cable. That session was never called.
Moreover, the manner in which the proceedings were orchestrated — the newly-appointed federal law minister stood up and demanded a ruling and instead of taking time to deliberate on the matter, the Speaker read out a pre-written note — gave the impression that rather than representing the legislature, the office of the Speaker and the Deputy Speaker were representing the executive and enforcing the will of the government.
Whose side is the Speaker on, anyway?
One cannot lose sight of the fact that the Speaker is supposed to be non-partisan — that he is a representative not of the executive, but the legislature. As the custodian of the House, it is his job to conduct a debate on a motion — which was done in this case — and then have the parliamentarians exercise their own discretion after hearing the debate and vote for or against the motion.
But for the Speaker to intervene and enforce his will upon the 342 odd members of the House is unprecedented.
A similar feat was attempted in the Balochistan Assembly in 1989, when the governor had dissolved the Assembly on the chief minister’s advice as the latter was faced with a vote of no confidence. Subsequently, when the court did intervene, it ruled that the governor should have insisted that the vote be cast.
Similarly, in the 2017 case of Imran Khan versus Mian Nawaz Sharif — the infamous Panama case — the SC held that certain rulings by the Speaker can be justiciable, and that if "the decision of Speaker was legally or factually incorrect", a court holding competent jurisdiction may intervene to set the record right.
In this case, it would be prudent for the SC to exercise restraint and simply enforce the Constitution as it exists — giving effect to Article 95 and setting the clock back to Sunday, when the motion was to be voted upon.
What it must not do is try to discover avenues for creating exceptions within the Constitution, which will in turn create issues vis-à-vis the certainty of interpretation of the Constitution. Such exceptions have been created in the past and have only marred the legacy of the Supreme Court.
If the dissolution of the Assembly is held to be a valid act and the Supreme Court recognises it as such, it would in effect be validating the proceedings conducted by the Speaker which dismissed the motion, empowering the premier again to advise the President to dissolve the assemblies.
Another issue is that by doing so, the prime minister and the leader of the opposition are now called into action by the president to respectively submit names for an interim setup.
The Constitution allows the president to grant special powers to the premier to continue in the role even after the dissolution of the Assembly for an interim period.
This interim period is defined by Article 224 and 224(A), which states that the both the leader of the opposition and the prime minister, along with the president, have three days to agree on a name for the interim prime minister. If they fail to do so, the Speaker will immediately constitute a committee of eight members — four each from the opposition and treasury — to whom the premier and the opposition leader must send two names each.
The committee has three days to deliberate on the names, failing which the names will be sent to the Election Commission of Pakistan, which must then decide on a name within two days.
Taking into account the transitionary period, one can expect that an interim premier will take charge almost two weeks from now.
However, the bigger issue is that the opposition has challenged the Deputy Speaker’s actions, which preceded and allowed for the president’s actions. For the opposition, these are nothing less than acts of treason. They are therefore, unlikely to be part of any consultation vis-à-vis the selection of the interim prime minister.
This would again create a Constitutional deadlock and invite the Supreme Court’s intervention in the process of coming up with a name for the interim setup.
As of now, all eyes are on the Supreme Court five-member bench that has taken up the suo motu proceedings today. Whatever they decide, the ramifications of yesterday's unconstitutional actions by the Deputy Speaker will certainly be felt for months, if not years, to come.
The biggest casualty amid all this is the Constitution — but at least the prime minister stays.