KARACHI: An elected provincial government in Pakistan cannot simply be dismissed because the federal government has fallen out with it, wants a change of administration or believes it is governing badly. But the constitution does provide several routes through which an elected provincial government can cease to function, or temporarily lose the exercise of its executive powers, before the provincial assembly’s normal five-year term.
The key distinction, according to constitutional lawyers, is between mechanisms that remove a government through the provincial assembly and exceptional provisions under which the federation can temporarily assume provincial functions.
As lawyer Salaar Khan puts it, the post-18th Amendment position leaves “a fairly short list, and all of it runs through the House. A chief minister goes if a fifth of the assembly moves against him and a majority of the total membership votes him out. He goes if the governor, having concluded that he has lost the House, summons it and he cannot win its confidence. He goes if he dissolves the assembly himself, which happens within forty-eight hours of his advice whether or not the governor signs, as we saw in Punjab in January 2023. And he goes if he loses his seat, whether by disqualification or by defection. So, a government can certainly fall without a no-confidence vote. What it cannot do is fall without the House having a say”.
Lawyer Abdul Moiz Jaferii, however, distinguishes between removing the chief minister and removing the entire provincial government. He says the “only complete removal” of a provincial government is by way of removal of the chief minister through a majority vote of no-confidence under Article 136.
Pakistan’s constitutional history includes periods when a governor, with presidential approval, possessed much wider powers to dissolve a provincial assembly.
Per Khan, “Not too long ago, a provincial government could be sent home by two signatures. The old Article 112(2)(b), the provincial version of Article 58(2)(b), allowed a governor, with the president’s approval, to dissolve an assembly if in his opinion, the province could not be governed in accordance with the constitution and ‘an appeal to the electorate’ was necessary. The 13th Amendment did away with that in 1997; Musharraf brought it back in 2002; the 18th Amendment removed it again in 2010. A governor today simply has no power to dissolve an assembly unless its chief minister has already lost a vote of no-confidence, and even then, only if nobody else can put together a majority, and only with the president’s approval”.
Barrister Ali Tahir similarly says that since the 18th Amendment, “Pakistan’s constitution does not give a governor a general power to sack an elected provincial government or dissolve an Assembly merely because the centre wants a different government”.
Tahir points to the 1988 dissolution of the Punjab Assembly and cabinet as an illustration: “In 1988, under the then-existing Article 112(2)(b), the Punjab Assembly and cabinet were dismissed along with other assemblies. In Muhammad Sharif v Federation of Pakistan, PLD 1988 Lahore 725, the Lahore High Court found the grounds for dissolution of the national and Punjab assemblies legally unsustainable.
It did not ultimately restore them because elections were already approaching, but the important constitutional principle was clear: even a supposedly discretionary dissolution power could not be exercised merely on ‘wish or whim’; there had to be objective constitutional grounds”.
Coming to Article 234, Barrister Rida Hosain explains: “Article 234 engages if the president, on receipt of a report from the governor, is satisfied that a situation has arisen in which the provincial government cannot be carried on in accordance with the provisions of the constitution. The president may, or if a resolution in this behalf is passed by each house of parliament ‘shall’ assume to himself or direct the governor of the province to assume on his behalf all or any of the functions of the provincial government”.
Khokhar and Khan stress that Article 234 requires a report from the governor, presidential action and parliamentary approval for continuation beyond two months, with a maximum constitutional period of six months. Tahir points to its use in Punjab in 2009 and Balochistan in 2013.
Hosain describes the constitution as operating in “two modes”: ordinary constitutional governance and an exceptional emergency mode. Under Article 232, she says, “a proclamation of emergency may be issued upon a grave threat to the security of Pakistan by war, external aggression, or internal disturbance beyond the provincial government’s capacity to control. In cases of internal disturbance, the constitution contemplates a resolution from the provincial assembly. If the president acts independently, the proclamation must be laid before parliament within ten days”.
The consequences can be sweeping, adds Hosain: “The federal government may, by order, assume to itself, or direct the governor to assume on its behalf all or any of the functions of the provincial government. Parliament acquires the power to legislate for the province on matters ordinarily outside its legislative competence. The constitutional balance between the federation and the province is altered”.
On the threshold for an Article 232 emergency based on internal disturbance, high court advocate Hassan Abdullah Niazi says that, particularly in the context of Khyber Pakhtunkhwa, “the only available ground is ‘internal disturbance’, and it must genuinely exceed the provincial government’s capacity to control. This has to be proved through material facts. Political polarisation or an anticipated protest does not meet that threshold under constitutional law, and a proclamation on that basis would be vulnerable to constitutional challenge. Since the 18th Amendment, an emergency on the grounds of ‘internal disturbance’ requires a resolution of the provincial assembly as a condition precedent”.
So, can federal intervention remove the chief minister? This question has been tested before the courts. Khan points to the Supreme Court’s decision in Pir Sabir Shah’s case in 1994 and the Lahore High Court’s decision in Manzoor Wattoo’s case in 1996, saying both courts held that a proclamation could suspend a chief minister but could not remove him.
Tahir similarly argues that if the question is whether a chief minister continues to command a majority, the constitution provides a direct mechanism for answering it, adding that “what the constitution does not provide is a general power for the governor or federal government simply to ‘dismiss’ an elected provincial government because of political disagreement, bad relations with the centre, policy differences or a change in political preference. If the real question is whether the chief minister still has a majority, Article 130(7) provides the answer: call the Assembly and count the votes. And if the opposition wants to remove the chief minister, Article 136 provides the answer: move and win a vote of no-confidence”.
Niazi warns that any such step “will also create a dangerous precedent where the federation can simply dismiss troublesome provincial governments over political differences. This would send us back to the 90s when a succession of federal governments were dismissed on a whim. The PML-N and PPP were the chief victims of this and it is a travesty that they hope to invoke something similar now”.
Jaferii is sceptical about the effectiveness of judicial safeguards in the current constitutional landscape, saying: “there used to be, but now we have a constitutional court in a post-constitutional order, so all bets are off”. Tahir similarly notes the changes following the 26th and 27th Amendments, although “the written constitution still contains mechanisms for constitutional review”.
Hosain sums up the democratic concern behind these safeguards: “if an elected provincial government can effectively be displaced whenever the federal government considers provincial governance inadequate, the electoral mandate of the province becomes subordinate to the political judgment of the centre. This is not democracy and this is why the emergency powers are time-bound, exceptional powers”.
Originally published in The News
