OPINION | Constitutionally Speaking, Pakistan National Assembly Is Still In Session. Know Why

Security personnel patrol in front of the Parliament House building in Islamabad on April 3, 2022 as Prime Minister Imran Khan called on his supporters to take to the streets ahead of a parliamentary no-confidence vote | Photo: AFP

On April 3, 2022 the National Assembly (NA) of Pakistan’s Majlis-e-shoora (Parliament) was dissolved, sending the country into a political turmoil and chaos and creating a constitutional crisis. Political pundits are, however, not surprised since this is nothing new for Pakistan that is yet to get a prime minister who has completed full tenure. 

The dissolution of Parliament raises many questions. To know the answers, we first need to understand the Constitution Of Pakistan.  

Majlis-e-Shoora

The Parliament of Pakistan is termed Majlis-e-shoora by its Constitution (Article 50, Constitution of Pakistan). Majlis-e-shoora has three components — the President, and two houses known as National Assembly and the Senate. 

NA has a duration of five years, unless dissolved early by the constitutional scheme (Article 52). The Senate is a continuous body and never gets dissolved [Article 59(3)]. Members of the Senate are elected for six years. 

General election to the NA must be held within 60 days of the expiration thereof, i.e. completion of five-year terms [Article 224(1) read with Article 48(5)].

Nevertheless, if the NA does not complete its term and is dissolved earlier than five years of the assigned duration, the general election to the NA must be carried out within 90 days from the date of its dissolution. 

Powers Of The President Of Pakistan

The President of Pakistan has some real executive powers, unlike their Indian counterpart. The Constitution binds Pakistan’s President to act on the advice of the prime minister of the country [(Article 48(1)]. Nevertheless, the President also enjoys discretionary powers in respect of any matter over which he has been empowered by the Constitition [Article 48(2)]. 

Thus, Article 48(2) gives power to the President of Pakistan to override the advice of the prime minister, if the subject matter is the one over which he has been empowered to act. The power to dissolve the NA also lies with the President of Pakistan if so advised by the Prime Minister [(Article 58(1)]. The power to dissolve the constitution would be covered under discretionary power of the President under Article 48(2) and not Article 48(1), because the President must apply his mind before dissolving the NA as advice could be illegal or ultra vires or mala fide.

The President has constitutional immunity to be tried in any court for application of his/her discretionary power. Although the President must act upon the advice of the PM, s/he may send it back for reconsideration of the PM. If the advice after reconsideration the PM is sent back, the President must act upon such advice. Nevertheless, the discretionary power of the President of Pakistan prevails over the advice of tendered by the PM and his/her cabinet in the event of a conflict between the discretionary powers of the President and the advice tendered by the PM.

Can PM Advise President To Dissolve Parliament If He Faces No-Trust Vote?

The dissolution of Pakistan’s NA in light of the fact and circumstances of the case is the miscarriage of constitutional democracy. Article 52 does not provide for any ground for dissolution of NA, but the Constitution of Pakistan provides for a safeguard for dissolution of NA by restricting and limiting the PM to advise dissolution of NA if he is facing a no-confidence motion [(Article 58(1) proviso clause]. 

It is clear that PM Imran Khan was restricted from advising the President to dissolve the NA because there was a notice of no-confidence pending against his government. Thus, the constitutional power of Article 58(1) becomes ultra vires for the PM if there is no-confidence notice tabled in the NA. Therefore, the advice envisaged under Article 48 would be no advice or ultra vires advice or unconstitutional advice because the PM facing notice of  no-confidence motion has been constitutionally stripped of the power to do so. 

NA Is Still In Session

It is safe to suggest that the NA of Pakistan is still in session. The President cannot act upon an advice which is ultra vires, and any action carried out by the President in response to ultra vires advice is no advice ab inito. Therefore, the advice of PM Imran Khan is tainted in light of Pakistan’s constitutional provision, which also taints the act of the President. Constitutionally speaking, the NA is still in session, and the Presidential order of dissolution thereof must be set aside.

The author is a PhD fellow at Hamburg University. He has written two books on financial laws.

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