Pakistan is once again in the throes of a crisis, as both the Pakistan Tehrik-e-Insaaf (PTI) and Pakistan Awami Tehrik (PAT) interalia are demanding the resignation of the Prime Minister. That is the true stumbling block. It is argued that such a demand has no constitutional basis and will give rise to many legal difficulties. However, possible ways out of the deadlock lie within the Constitution itself.

The use of the provision for referendum in the Constitution as contained in Clause 6 and 7 of Article 48 reads as follows:

48. (6). If at any time, the Prime Minister considers it necessary to hold a referendum on any matter of national importance, he may refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) and if it is approved in a joint sitting, the Prime Minister may cause such matter to be referred to a referendum in the form of a question that is capable of being answered by either “Yes” or “No”.

(7) An act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum.

In this way, all parties can reach a consensus to pass an act of Parliament for laying down the procedure for holding a referendum and the compilation of its results. The answer to the question posed in the referendum has to be simply a “Yes” or a “No”. The results of the referendum should then be accepted by all parties whatever they may be. The questions in the referendum could be as follows:

n Should the Prime Minister resign?

n Should the Assemblies be dissolved?

Another way out of the present political situation would be for the Prime Minister to avail leave for a period of 3 months in accordance with Section 12 of the Prime Minister’s (Salaries, Allowances & Privileges) Act 1975 which reads as follows:

12 (1).    The Prime Minister may avail himself a leave of absence during his term at any one time or from time to time for urgent reasons of health or private affairs for a period not exceeding 3 months in the aggregate”.

This is not a constitutional provision but a statutory provision.

The Prime Minister under Section 6(1) of the Prime Ministers Act, 1975 shall not be entitled to the use of railway saloons, river crafts, air craft or official cars during any period for which he is on leave. These are the only privileges the Prime Minister cannot avail; otherwise he is entitled to all other privileges of his office during this period. The Prime Minister will continue to remain in office while on leave.

Under Article 90 (1) of the Constitution, the Federal Government consists of Prime Minister and the Federal Ministers which shall act through the Prime Minister who shall be the Chief Executive of the Federation. However, in Clause 2 of Article 90 of the Constitution, in the performance of his functions, the Prime Minister may act either directly or through the Federal Ministers. It is therefore permissible for the Prime Minister to transfer any of his constitutional functions to the Federal Ministers at any time. For example, the Prime Minister may authorize Minister for Defence to directly place summaries to the President with regards to all matters relating to his Division. The Prime Minister may also authorize the Minister for Finance to obtain the approval of the President directly in any matter relating to his Division without placing the matter before the Prime Minister.

The Constitution allows the Prime Minister under Clause 2 of Article 90 to transfer all his constitutional functions to any one Federal Minister or a Committee of Ministers of his choice. The Federal Minister or Ministers so nominated shall perform all functions of the office of Prime Minister during the period that the Prime Minister is on leave. It would be pertinent to mention that under Rules 20 (3) and 20 (4) of the Rules of Business, Government of Pakistan, 1973, the Prime Minister is also empowered to authorize any Minister to preside over meetings of the Cabinet in his absence. But under this Rule, decisions taken by the Cabinet would require approval of the Prime Minister. In case of emergency the Cabinet is also authorized to take decisions in anticipation of the Prime Minister’s approval. Rules 20 (3) and Rule 20 (4) of the Rules of Business, 1973 reads as follows:

(3) The Prime Minister may authorize the holding of Cabinet meetings during his absence.

(4) The Prime Minister shall preside at all Cabinet meetings. In the absence of the Prime Minister, a Minister nominated by the Prime Minister shall preside. The decisions taken in the Prime Minister’s absence shall be subject to the approval of the Prime Minister, unless the Cabinet feels that a particular case is so urgent that immediate action may be taken in anticipation of the Prime Minister’s approval.

It is important to note that no time period is given during which such approval may be obtained. As the Prime Minister can transfer all his functions to any Federal Minister. Clause 9 of Article 91 is of significance which states that any person can be appointed as Minister for a period of six consecutive months even if he is not a Member of National Assembly or Senate.

If an agreement is reached between all political parties to appoint any neutral person as a Minister who is neither an MNA or a Senator, then the Prime Minister may transfer all his constitutional functions to him and thereafter proceed on leave. This may be a way out of the current political impasse which has continued for several days. The Minister performing functions of the office of Prime Minister may install a new interim Cabinet representing various parties for a specific period thereby saving democracy and the present assemblies.

During the said period, the person may also, with the consensus of all parties, issue Ordinances for electoral reforms etc. It should however be kept in mind that the Parliament and the Prime Minister would remain intact with this arrangement and the Prime Minister can at any time take over the reigns of power.

When a Minister is heading the interim arrangement, the Judicial Commission as proposed by the Hon’ble Prime Minister may also start functioning and the results could inform the future course of action.

By consensus arrangement, the Government may not call a session of the National Assembly or Senate during the period.

Clause 2 of Article 54 states as follows:

54. (2) There shall be at least three sessions of the National Assembly every year, and not more than one hundred and twenty days shall intervene between the last sitting of the Assembly in one session and the date appointed for its first sitting in the next session:

Provided that the National Assembly shall meet for not less than one hundred and thirty working days in each year.

An agreement would have to be reached so that the National Assembly if summoned on request of 1/4th or more of its total membership during this period would not upset the consensus arrangement. In this way, the system would remain intact, the National Assembly and the Senate would continue their existence and all the reforms etc. may take place with the neutral setup without endangering democracy.

 The writer is a Barrister-at-Law.

ohsajjad@hotmail.com