Syed Sharfuddin very aptly describes a crucial constitutional procedure
The concept of no confidence motion vote in a parliamentary democracy is based on the premise that political power rests with the people and they have the right to choose or reject a government formed in their name. This right is exercised through people’s elected representatives in parliament. While the tenure of an elected government is fixed for five years, the timing for its dissolution is left open ended, emphasising that the executive shall remain in office so long as it enjoys the confidence of the majority in the legislature.
Almost every democratic country has a history of no confidence votes which have been historically less successful than their original intent. The first time a no confidence vote was used was in 1782 in the parliament of England when legislators, angry over the defeat of the British military by the American volunteer army forced Lord North to submit his resignation to King George III. In the UK there have been a total of 11 prime ministers who were defeated in no confidence motions. In India 27 no confidence motions have been moved in Lok Sabha to date but only three have been successful. In Pakistan which has had a history of interrupted democracy, two no confidence votes were used against the sitting prime ministers (Benazir Bhutto in 1989 and Shaukat Aziz in 2006) which did not pass. A third no confidence motion was filed on 8 March 2022 against the current Prime Minister (Imran Khan) and is yet to be voted in the National Assembly.
The difference between the no confidence motions in India and Pakistan is that in India the leaders of the house resigned in the wake of no confidence motions submitted by the opposition and refusal or absence of support to them from the coalition partners (V P Singh in 1990, Atal Bihari Vajpayee in 1996 and H D Deve Gowda in 1997), but in Pakistan the leaders of the house decided to face the vote of no confidence motions and were successful in retaining their office. This same pattern is visible in the vote of no confidence motion against Prime Minister Imran Khan who has decided to confront it in the National Assembly instead of tendering his resignation and calling a fresh election as demanded by the combined opposition. However, one Pakistani Prime Minister (Hussain Shaheed Suhrawardy) was not allowed to seek a vote of confidence in 1957 and resigned under threat of dismissal by President Iskander Mirza.
In the Westminster style of democratic governance, a motion of no confidence is a vote of impeachment against the entire council of ministers, including the prime minister. When it is passed by the majority of legislators, the government must resign or in the alternative, offer to dissolve parliament and/or call for a general election. No confidence motions are usually brought on account of serious disagreement on policy issues of governance or on questions of broader national interest or for personal issues of corruption and graft. In the present no confidence motion in Pakistan against the incumbent Prime Minister, the reasons cited are both policy issues and personality factors. Prime Minister Imran Khan is accused by his political opponents of harming the country’s national interest by unwise economic policies which have led to rampant inflation, uncontrollable price hikes in food items and essential commodities, and visiting Russia on the eve of Russian invasion of Ukraine which allegedly compromised Pakistan’s neutral position in the conflict and annoyed Pakistan’s Western donors and trading partners who have abundantly made it clear that any country siding with the aggressor in the Ukraine conflict will be made to face the consequences of its decision.
In Pakistan’s case this has been taken too far as the Foreign Office took exception to the letter of NATO envoys urging Pakistan to condemn Russia in the UN vote and the Prime Minister going public to say he cannot be bowed down to external pressure. On the personality front, the Prime Minister is accused of being reckless and deeply personal in his verbal tirades against the leadership of the opposition and critics of his government, including the media. The army has stated that it is neutral and does not want to get dragged in the matter. However, the military’s interests are served better by not making the US, UK, EU and other Western allies unhappy with Pakistan, even though they welcome Pakistan’s growing ties with Russia and support continuation of Pakistan’s economic and strategic cooperation with China. The Prime Minister avoided a similar vote of no confidence last year when in March 2021 his Finance Minister lost a crucial election in the Senate, by pre-empting it with a vote of confidence which he won with 178 votes in the National Assembly , as against the required number of 172.
In countries where there are fragile federations or political parties are fragmented and region based, the frequency of no confidence votes is relatively high. As a safety measure for political stability, these countries place restrictions on the number and process of initiating no confidence motions in legislature. Historically, no-confidence motions do not have a high success record in world parliaments. Some constitutions also include a defection clause to discourage legislators from switching their membership or vote in the legislature from the party on whose ticket they were elected to another party during the legislative tenure of parliament. Sometimes these restrictions encourage former members of old parties who are electable in their constituencies to form small parties and avoid the defection clauses because they can exercise influence on a minority government by joining government coalition with the ability to switch support from the ruling party to the opposition when it suites them. Prime Minister Imran Khan’s governing party PTI has 155 members in parliament which is supported by 23 legislators from its coalition partners comprising 7 from MQM, 5 each from PML (Q) and BAP, 3 from GDA, one each from AML and JWP, and one independent member. The opposition consists of 163 members, comprising 84 from PML (N), 56 from PPP, 15 from MMA, 4 from BNP, one from ANP and 3 independent legislators.
There are two types of no confidence motions: a regular motion of no confidence, and a constructive motion of no confidence. The regular motion of no confidence is prevalent in many parliamentary democracies. This system calls for the removal of an existing government and beginning the process of either replacing it by another government or calling for a general election through a vote, supported by the majority of legislators in the legislative house. The voting is done either secretly, or through a vote of Ayes or Nos or through a division of the house, usually with no third option of abstaining. In the regular motion of no confidence a government can be brought down if those who are supporting the motion are larger in number than those against whom the motion has been moved. Usually, in the regular vote of no confidence, the majority of the total number of legislators elected to the house is not required to determine the success or failure of the motion, as long as those who are present and taking part at the time of the voting pass or reject the motion. The onus of proving that they have the required majority to bring a government down rests with the opposition parties that have moved the motion of no confidence and not with the government against whom the motion is moved. There are some limitations placed on the regular motion of no confidence such as the minimum number of legislators required to bring a motion to the floor of the house, the requirement of a quorum and whether it is a secret ballot.
A constructive motion of no confidence on the other hand severely limits the ability of the opposition to vote out government. A constructive motion has two safety features which are not present in the regular motion of no confidence. These are the requirements that a majority of the total membership of the House should pass a motion of no confidence as against the majority of those present; and an agreement must be achieved on an alternate candidate who would be voted in to replace the leader of the house against whom the vote of no confidence is passed. Where these requirements are not met, the motion of no confidence fails. A constructive motion of no confidence is therefore a vote for a new government to replace the one which is being removed by a vote of no confidence. In a constructive vote of no confidence, a government can survive even if it has the support of only one or two members, as long as the rest of the members are not agreed on an alternate candidate to form a new coalition government.
The constructive motion of no confidence is further strengthened by the caveat of having a higher number of legislators who can present the motion or a resolution of no confidence against a sitting government. On a global average this number varies between 10 to 25 per cent of the total number of legislators. Pakistan has placed this limit at 20 per cent which means that a motion of no confidence should have at least 68 or more signatures to be accepted by the Speaker of the National Assembly for taking necessary action. A second method is to place a limit on the number of no confidence motions that can be introduced in the same session and the interval between them. The Pakistan constitution places no limit on the number of no confidence motions that can be initiated against a government but in the Rules of Business (Rule 113) the time limit for resubmitting a resolution of no confidence to parliament is 6 months.
The constructive motion of no confidence is also strengthened by allowing slightly longer time to the government to react to the motion. It can vary from 48 hours to 2 weeks. In Pakistan’s case it is roughly 2 weeks. The system of constructive motion of no confidence is followed by the parliaments of Germany, Spain, Hungary, Slovenia, Poland, Belgium and Israel. Three of the seven countries are former east European states. Two of these countries, Belgium and Israel introduced this system not due to historical tradition but as a result of political reforms. The system encourages continuity of government during the term of parliament and prevents smaller coalition partners from extracting higher political concessions from a government struggling to keep its majority in parliament.
There are three ways through which a government can be constitutionally dismissed in Pakistan. The first is under Article 58; the prime minister advises the president to dissolve the National Assembly and call fresh elections before the expiry of the electoral term of parliament. The second is under Article 91 (7); the president may ask the prime minister to seek a vote of confidence from the National Assembly if he believes that the prime minister does not command the confidence of the majority of the Assembly. The third method under Article 95 (1 to 4); a resolution for a vote of no confidence, moved by not less than 20 per cent of the total membership of the National Assembly, is passed against a sitting prime minister by a majority of the total membership of the National Assembly. The Pakistan constitution combines the features of both the regular and constructive forms of vote of no confidence without making it mandatory that in the event of a vote of no confidence vote having been passed by the National Assembly, the same Assembly should simultaneously elect a new leader of the National Assembly to form a new government.
Article 95 of the Pakistan constitution, read with Articles 58, 63 (A) and 91 (7), provide guidance about the conduct of vote of no confidence. The procedure for initiating a motion or resolution of no confidence and taking a vote on it is provided in the Procedure and Conduct of Business of the Pakistan National Assembly, 2007. Rule 37, read with Rules 323 and 38 of the Rules of Business, state that the Speaker has a period of 14 days from the date a resolution of no confidence has been received by him to bring it to the floor of the National Assembly for action. In addition, the Speaker has the discretion to call for a vote on the resolution between three to seven days of the circulation of notification of the resolution, during which time he may also set aside a number of days for a debate on the motion. On the conduct of the poll, Pakistan follows the most transparent but democratically questionable method of members voting by an open vote by the division of the house. At the election of the Senate Chairman in 2021 the Supreme Court set aside the request of the government to cast an open vote and instead ruled in favour of the secret vote.
Since the restoration of civilian democracy in 2008, Pakistan’s political parties have placed a great deal of emphasis on parliaments completing their full term of five years. Cutting short a term through a vote of no confidence or a snap election called by a prime minister is an expensive affair for countries like Pakistan which have large budget deficits. Over the years there have been efforts to strengthen the office of the prime minister by removing the obstacles placed on his authority by intermittent martial laws. In 1997 two landmark constitutional amendments were adopted to strengthen the office of the prime minister. The 13th amendment removed Article 58(2B) of the constitution which was introduced in the constitution in 1985 by General Zia ul Haq. The 8th amendment, as it was called, gave the president the authority to dismiss a sitting prime minister and his government on charges of corruption.
The 14th amendment further strengthened the position of the prime minister by giving the heads of political parties the authority to dismiss a legislator who was elected on the party ticket for breach of his party’s discipline or voting contrary to party direction. Article 63-A of the constitution states that a legislator who was elected on the ticket of a party may be deemed to have defected and unseated after due process, if he resigns from the membership of his party or joins another parliamentary party, or votes or abstains from voting contrary to the direction by his parliamentary party when the Assembly takes a vote on the election of a prime minister or chief minister, a vote of confidence or no confidence, or a money bill or a constitution amendment bill.
In 2003, the omnibus 17th amendment giving legitimacy to General Musharraf’s Legal Framework Order restored the defunct 8th amendment in Article 58 in a different form and empowered the president to dissolve the National Assembly without consulting the prime minister or a resolution passed by the legislature. It also made the president’s action subject to reference and approval of the Supreme Court. However, under a civilian government in 2010, the 18th amendment removed this power from the president and gave it back to the National Assembly.
Since the constitution includes many features of a constructive vote of no confidence, the parliament should consider adding to it the condition that the passage of a vote of no confidence should be dependent on the opposition being able to elect a new leader of the house in the same session which votes to bring a government down by a majority vote of no confidence to guarantee continuity of governance, political stability and avoiding an expensive election exercise outside the parliament’s fixed 5 year term. If the opposition fails to get the required majority for the proposed alternate leader of the house, then a no confidence motion passed against a sitting prime minister should be declared null and void. In other words, the same majority that votes to bring down a sitting government should be in a position to vote in a new government as long as they have 50% plus one vote of the total number of house in their favour.
Parliamentary democracy encourages continuity of the political process through the representative institutions of the people. It is when these institutions fail to perform their function or are denied their role, the question of fundamental rights of people comes into play. As long as the National Assembly is functioning and the parliamentary parties are able to exercise their rights under the constitution as the representatives of the people, there is no reason why the parallel route of agitation and mass rallies should be simultaneously followed by opposition leaders. The government should enact a law outlawing political agitation, mass rallies and public ‘dharnas’ if the parliamentary route for resolving political issues is open to political parties under law and if the judiciary is playing its role to ensure that the opposition gets the required space within the political system to challenge the government on corruption charges, matters of national interest and important policy issues. There is also a need for the parliament and the judiciary to work together to reinforce parliamentary good conduct and promote high standards of interaction between the government and opposition political parties and their leadership, in particular discouraging their political workers to use abusive language and shun the disgusting vocabulary of vagabonds and street urchins. That the political elites should be told to censor their language is itself most regrettable, let alone them advising their workers to be careful in shaping an acceptable discourse of political debate in the country.
A debate has ensued in political circles about the interpretation of Article 63A of the constitution whether the vote of a legislator who has voted against the party direction in a vote of no confidence in the National Assembly is to be counted or discarded for deciding the result. The government’s position is that if the ruling party has decided not to be present in the National Assembly when the vote of no confidence is in progress, the very presence of a legislator from the ruling party is an act of defection and it is right for the Speaker to discount his vote. The opposition on the other hand believes that the reading of the Article 63A is unambiguous about the defection and its due process, and that it does not prevent a legislator from exercising his fundamental right to vote. In the event of a constitutional crisis arising out of a tie on a vote of no confidence, this question is likely to go to the Supreme Court creating further instability in the country. The parliament should reconsider amending this Article to clearly state whether a vote cast by a defecting legislator in a vote of no confidence is to be denied or counted to decide the result.
Finally, in a parliamentary democracy power rests with the people who elect their representatives to exercise it on their behalf in the act of governance. However, in reality the political representatives of the people rarely connect with the people except at the time of election. When an opposition threatens the government with a vote of no confidence or when a government defends it in the Assembly, it is hard to establish whether the legislators are indeed reflecting the will of the people or pursuing their own personal agendas to advance their political careers. It therefore makes a strong case for the political reform of the electoral system and within it the replacement of the regular system of no confidence vote with that of a constructive system of no confidence vote as has been done in Belgium and Israel. If Pakistan does this, it will be the first country in the Commonwealth to take the first step toward strengthening parliamentary democracy by one more notch. TW
Syed Sharfuddin is a former diplomat and a former Special Adviser for Asia in the Political Affairs Division of the Commonwealth Secretariat, London, UK (2000-2006)