On March 8, the opposition parties moved a resolution for a no-confidence vote against Prime Minister Imran Khan (PM) under Article 95(1) of the Constitution. The PM ceases to hold office if “a majority of the total membership of the National Assembly” passes a no-confidence resolution. The opposition needs 172 votes, which it does not have unless legislators of the coalition parties or some legislators of the ruling party defect and vote to oust the PM. It appears that several ruling party legislators are unhappy with the PM and are willing to vote for the no-confidence resolution. The media, lawyers, and politicians are vigorously debating whether legislators may lawfully vote on a no-confidence resolution as they please, ignoring party affiliation and direction.
This commentary argues that voting on a no-confidence resolution is a legislative matter, just like voting on bills. The Constitution empowers the legislators of the National Assembly, whether they belong to the ruling party or opposition parties, to vote on a no-confidence resolution according to their conscience and sentiments of constituents and that their vote must count. Sadly, the legislators who vote contrary to the party direction face the threat of losing membership in the National Assembly under Article 63A, titled disqualification on grounds of defection, etc., of the Constitution. Even though Article 63A also covers party defection in provincial assemblies, the commentary focuses exclusively on the constitutional parameters of a no-confidence resolution in the National Assembly.
Party Heads Under Article 63A
Article 63A is a non-democratic provision added to the Constitution through an amendment in 2010. The Article establishes the control of the “Party Head,” a constitutional phrase, over legislators and purportedly prohibits defection in a no-confidence resolution. Arguably, the Article mandates that the legislators vote following their Party Head’s command. Article 63A does not distinguish between the ruling party and opposition parties and grants the same power to all Party Heads, regardless of whether they themselves are elected to the National Assembly. Thus, if an opposition party legislator or a coalition party legislator votes contrary to the party direction, they too may be disqualified for defection.
Unfortunately, Pakistan’s dominant political parties are private fiefdoms rather than democratic parties. Primarily structured to protect Party Heads, such as Nawaz Sharif, Asif Ali Zardari, and Imran Khan, parties demand total loyalty from legislators elected to national and legislative chambers. These parties have no internal democracy to select the Party Head. Once a Party Head, always a Party Head until death does it apart.
For example, Benazir Bhutto inherited the Pakistan Peoples Party from her father, hanged by a military dictator. After her assassination, the party found Bhutto’s will that granted the Party Headship to her husband and adolescent son. Nawaz Sharif, residing in London, disqualified from the National Assembly, controls the Pakistan Muslim League (N) as the de facto Party Head, though his brother and daughter run the party as successors. PM Imran Khan, who founded the Tehreek Insaf, is the Party Head and will likely remain until he dies or the party falls apart.
In 2010, after destabilizing each other for decades, the Bhuttos and Sharifs joined hands to add Article 63A to the Constitution through the 18th amendment. The Article threatens the loss of membership in the National Assembly to any legislator disobeying the Party Head’s direction relating to the removal of the PM. Thus, Article 63A further entrenches the hegemony of Party Heads and the related non-democratic culture within the political parties. Indeed, Party Heads see themselves as the heirs of Mughal emperors.
The drafters of Article 63A justified its inclusion into the Constitution to safeguard democracy against military influence over legislators and eliminate bribery. Given repeated military coups that overthrew democratically elected governments, the political concerns were legitimate that the military continues from behind the curtain to manipulate parliamentarians for removing governments. The bribery considerations were sincere since a few legislators demanded vast amounts of money to switch parties and cast votes, undermining party discipline. The pre-Article 63A political culture was corrupt and unruly, detrimental to political stability. Party Heads spent most of their resources on “horse-trading” rather than crafting legislation for the people’s welfare.
Unfortunately, Article 63A has failed to modify political behaviors. Though highly pietistic in rhetoric, the political culture of the Islamic Republic of Pakistan is thoroughly corrupt and lawless. On the Corruption Perception Index, Pakistan stands near the bottom in the global community. As before, some legislators continue to engage in corruption in secret votes in violation of the party platform. The military has not stopped covertly intervening in the parliamentary process despite public denials of doing so.
Since the legislators vote on a no-confidence resolution in the open without any confidentiality, Party Heads would know which legislators disobey them. Article 63A empowers the Party Head to initiate a disqualification proceeding against a defecting legislator. In so doing, the Article promotes a non-democratic pathos within political parties, strengthening the Party Head’s autocratic powers, forcing legislators to cast votes on a no-confidence resolution per dictation, disregarding their conscience and sentiments of the constituents.
Right to Assembly
As the Party Head, PM Imran Khan, through his cabinet members and spokespersons, takes a sequence of positions on Article 63A. He first argues that he enjoys the legal authority under Article 63A to prohibit all ruling party legislators from attending the no-confidence session of the National Assembly. This strategy will prevent potential defectors from voting for his removal. Ironically, throughout his political life, PM Khan has been a pesky critic of Party Heads, who own political parties as family fiefdoms, calling them “corrupt mafia.”
PM Khan misinterprets Article 63A, which does not confer any restraining power on Party Heads. Neither the Party Head of the ruling party nor the Party Heads of opposition parties may lawfully forbid legislators from attending a no-confidence session, a significant legal matter entrusted to the National Assembly. At the most basic level, any such prohibition violates “the right to assemble peacefully” that the Constitution grants all citizens, including legislators.
Each legislator has a constitutional right and obligation to attend a National Assembly session considering a no-confidence resolution. Any Party Head who prohibits legislators from attending the session engages in a subversion of the parliamentary proceedings and willfully violates the rights of the legislators to express their conscience and constituents in a legislative act. Any legislator who obeys the Party Head in subverting the parliamentary proceedings by not attending the session violates the oath of the office to uphold the Constitution and “perform my functions honestly.”
Right to Vote
As the Party Head, PM Khan further suggests that he has the constitutional authority under Article 63A to prevent potential defectors in the ruling party from casting a vote on the no-confidence resolution. Since the PM is unsure about the identity of potential defectors, he uses a broad sweep to forbid all legislators of the ruling party from casting a vote on the no-confidence resolution.
PM Khan misunderstands Article 63A, which triggers the disqualification proceeding upon voting or abstaining from voting contrary to party direction, not anytime before. Article 63A does not confer power on a Party Head to preempt voting by a party legislator on a no-confidence resolution. Any preemptive authority to disallow voting strengthens the Party Head’s autocracy without promoting parliamentary democracy. Such preemption also degrades the legislative process inherent to a no-confidence resolution.
Voting in a parliamentary session is a constitutional right of elected legislators in good standing. By denying a legislator to vote on a constitutional matter, including a no-confidence resolution, the Party Head denies the legislator the freedom of expression guaranteed under the Constitution and the obligation to represent their electoral district. In the United States, the speech or debate clause of the US Constitution derived from the English Bill of Rights protects the legislative process and the legislators from “intimidation by the executive” or a “hostile judiciary.” Pakistan has inherited many features of the English Bill of Rights, and the courts will pay attention to the freedom of speech and debate in the Parliament.
When an elected legislator votes on a no-confidence resolution contrary to the party direction, they express their conscience and sentiments of their constituents and choose potential disqualification over non-voting. It is within the realm of probability that a defector has accepted a bribe from an opposition party, or the military has influenced them to defect. In such cases, however, there are enough laws in the books to punish them for unlawful conduct. However, a Party Head’s policy of preempting all party legislators from voting on a no-confidence resolution is not within the text or purpose of Article 63A.
Vote Counting
PM Khan next argues that the National Assembly Speaker has the authority under Article 63A to decline the counting of the votes of party defectors. Article 63A authorizes the “Presiding Officer of the House” to receive the Party Head’s declaration that a member has defected from the party. Upon receiving the defection declaration, the Speaker has no authority to disqualify the defector but must forward the declaration to the Election Commission for a final decision.
The Speaker acts as an intermediary between the Party Head and the Election Commission for forwarding a Party Head’s declaration of defection. There is no language in Article 63A authorizing the Speaker not to count the defectors’ votes. The Speaker does not know whether the legislators of opposition parties might also vote contrary to the wishes of their Party Head until they vote. The Speaker has no authority to degrade a no-confidence resolution by choosing who can vote and who cannot. Any interference with a legislative matter, such as a no-confidence resolution, is a severe breach of the Speaker’s obligation to the constitutional process.
Yet, there is a reason why PM Khan wants the Speaker not to count the defectors’ votes. The PM hopes to win without a court challenge if the Speaker, a ruling party member, rules not to count the defectors’ votes. Article 69 of the Constitution excludes judicial review of “the validity of any proceedings” in the National Assembly. This Article preserves the separation of powers between legislature and judiciary and protects the sovereignty of the Parliament. However, the Speaker’s powers under Article 69 are not arbitrary.
Article 69 limits judicial review of “any irregularity of procedure.” The non-counting of a vote due to party defection is not a mere irregularity of procedure; it is a monumental ruling negating the rights and obligations of elected legislators to vote, the legislators’ constitutional authority to remove a PM, which is a form of legislation. The Speaker’s non-counting ruling also violates the people’s right to be represented in a no-confidence resolution through their elected representatives.
Ousting the Supreme Court’s judicial review under Article 69 will require the Party Head to make a good case why the Supreme Court should abandon its powers under Article 187 of the Constitution, which states that the Court “shall have the power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case.” Article 69 does not override Article 187, except in clear cases of procedural irregularities.
Disqualification
The disqualification of defectors from the National Assembly for acting contrary to the Party Head’s dictation is an unusual punishment. However, the Article will be effectively repealed if the Election Commission or the Supreme Court refuses to impose the disqualification cost on defectors. Article 63A empowers the Party Heads to control legislators. It seems unlikely that the Party Heads will ignore the Article to allow elected legislators to vote in a no-confidence resolution according to their conscience and sentiments of their constituents.
Article 63A falsely promises political stability and safeguards against military manipulations. Political corruption is rampant even under the neglectful eye of PM Khan, and he continually seeks favors from the military establishment to strengthen his tenure, promoting the same page doctrine. PM Khan is doing what Article 63A wants to abolish. Under these circumstances, the disqualification cost for the defecting legislators is too high for making a legislative choice. It directly negates the constituents’ democratic right to speak and act through their elected representatives.
Conclusion
Article 63A has a complicated political history involving military coups, military manipulation of political parties, corruption, and buying and selling legislators’ votes. Drafted by Party Heads, Article 63A places democratically-elected legislators under the thumb of Party Heads, who might be, as non-members, pulling the strings from outside the Parliament. The Article is living evidence of a political milieu under which Party Heads call the shots.
In an accountable democracy, elected legislators vote on a no-confidence resolution according to their conscience and the wishes of the people who elected them. Unfortunately, a small minority of legislators have been defecting from parties for various reasons, including bribery, opportunism, and political revenge. However, disqualifying a defector in a no-confidence resolution is a clumsy solution that does more harm than good. It corrupts the integrity of the parliamentary proceedings and interferes with a no-confidence resolution as a legislative matter.
It appears the wrangling over Article 63A will eventually land in the Pakistan Supreme Court because PM Khan vows to fight at all fronts. Given the non-democratic implications of Article 63A, the Supreme Court will likely interpret its provisions supporting representative democracy rather than upholding the hegemony of Party Heads. The Court is unlikely to enforce the Party Head’s command to deny the defectors the right to assembly or vote in a no-confidence resolution. The Court will throw away the Speaker’s ruling that refuses to count the defectors’ votes supporting a no-confidence resolution. It is unpredictable whether the Court will mitigate the disqualification punishment for defection.
L. Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on constitutional law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments at legal.scholar.academy@gmail.com
Suggested citation: L. Ali Khan, Constitutional Wrangling Over No-Confidence Motion Against Pakistan Prime Minister, JURIST – Academic Commentary, March 14, 2022, https://www.jurist.org/commentary/2022/03/l-ali-khan-no-confidence-vote-pakistan-pm/.
This article was prepared for publication by Katherine Gemmingen, Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org
