Although the prevailing crisis in the country is essentially political in nature, it has nevertheless raised some critical constitutional issues. Chief among them is the constitutionality (or lack thereof) of the Pakistan Tehrik-e-Insaaf (PTI) and Pakistan Awami Tehrik’s (PAT) demand for Prime Minister Nawaz Sharif’s resignation.
A quintessential example of core political speech, the individual or collective calls for the prime minister’s resignation are not per se forbidden by our constitution and jurisprudence, which in fact duly recognize the centrality of such speech to the full exercise of democratic rights and freedoms including, of course, the freedom of speech and expression.
Core political speech typically consists of conduct and words intended to directly rally public support for a particular political issue or position. In Meyer v Grant (1988), the United States Supreme Court crisply defines it as involving any ‘interactive communication concerning political change.’ In constitutional democracies, it is typically elevated above other forms of speech because of its indispensability to a functional democratic process.
[quote]Calls for the prime minister's resignation are not forbidden by the constitution per se [/quote]
Significantly though, like all modern written constitutions, free speech is not an absolute right under our constitution either. Rather, it is contingent upon reasonable restrictions and necessary curbs imposed by law for the maintenance of public order and prevention of incitement to law-breaking. In the case of core political speech, such restrictions must however be narrowly tailored to serve a compelling state interest.
Given this overarching constitutional and jurisprudential framework, it is clear that calls by PTI and PAT for the prime minister’s resignation are, in and of themselves, a protected form of political speech, in so far as they are expressed in words and conduct not imminently disruptive of public order or inciting offence.
Notwithstanding the constitutionality of the demands of resignation themselves, the prime minister is not constitutionally compelled at all to give in to these calls. There is no constitutional provision mandating his resignation in the current circumstances. The 18th Amendment, passed in 2010, expunged the infamous Article 58 2 (b) from the constitution, which had earlier granted discretionary powers to the president to unilaterally dissolve the Parliament. Under the legal cover of that anti-democratic Article, Benazir Bhutto and Nawaz Sharif himself were sent packing thrice in the 1990s, twice by President Ghulam Ishaq Khan and once by President Farooq Leghari. Today, the prime minister faces no such constitutional perils from President Mamnoon Hussain.
Pursuant to the constitution’s Article 91 (7), ‘the Prime Minister shall hold office during the pleasure of the President, but the President shall not exercise his powers under this clause unless he is satisfied that the Prime Minister does not command the confidence of the majority of the members of the National Assembly, in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly.’ If a vote of no-confidence is passed against the Prime Minister by the majority of the total membership of the National Assembly, the president may dissolve the Assembly at his discretion. Significantly however, the anti-defection Article 63-A of the constitution presently forbids a National Assembly member from voting contrary to the directions of his parliamentary party in relation to votes of confidence or no-confidence. Therefore, barring an unlikely mass rebellion against Prime Minister Sharif among the ranks of the PML-N coupled with their effective control of the party’s parliamentary affairs, it remains constitutionally impossible to bring a successful vote of no-confidence against him that may force him out of office.
The prime minister may be under no constitutional compulsion to resign at the moment. But that does not foreclose or limit the independent possibilities of his resignation on moral or political grounds upon which political leaders—including President Ayub Khan in 1969—have been serially forced out of office throughout history across various continents and cultures. Notably, the constitution envisages such possibilities by providing for the prime minister’s voluntary submission of resignation to the president under Article 91 (8).
In the final analysis, it will be the tide of public opinion and not constitutional and legal provisions or principles that will determine the duration of Nawaz Sharif’s third stint as the prime minister. If public opinion against him precipitously slides, he may be heading for the exits out of moral and/or political compulsions sooner than even his fiercest critics anticipated after the last election barely 14 months ago. For Napoleon, public opinion was a thermostat to be constantly consulted. The prime minister should imbibe from this wisdom as he battles through his third term in office.
The writer is a lawyer. He can be reached at as2ez@virginia.edu
A quintessential example of core political speech, the individual or collective calls for the prime minister’s resignation are not per se forbidden by our constitution and jurisprudence, which in fact duly recognize the centrality of such speech to the full exercise of democratic rights and freedoms including, of course, the freedom of speech and expression.
Core political speech typically consists of conduct and words intended to directly rally public support for a particular political issue or position. In Meyer v Grant (1988), the United States Supreme Court crisply defines it as involving any ‘interactive communication concerning political change.’ In constitutional democracies, it is typically elevated above other forms of speech because of its indispensability to a functional democratic process.
[quote]Calls for the prime minister's resignation are not forbidden by the constitution per se [/quote]
Significantly though, like all modern written constitutions, free speech is not an absolute right under our constitution either. Rather, it is contingent upon reasonable restrictions and necessary curbs imposed by law for the maintenance of public order and prevention of incitement to law-breaking. In the case of core political speech, such restrictions must however be narrowly tailored to serve a compelling state interest.
Given this overarching constitutional and jurisprudential framework, it is clear that calls by PTI and PAT for the prime minister’s resignation are, in and of themselves, a protected form of political speech, in so far as they are expressed in words and conduct not imminently disruptive of public order or inciting offence.
Notwithstanding the constitutionality of the demands of resignation themselves, the prime minister is not constitutionally compelled at all to give in to these calls. There is no constitutional provision mandating his resignation in the current circumstances. The 18th Amendment, passed in 2010, expunged the infamous Article 58 2 (b) from the constitution, which had earlier granted discretionary powers to the president to unilaterally dissolve the Parliament. Under the legal cover of that anti-democratic Article, Benazir Bhutto and Nawaz Sharif himself were sent packing thrice in the 1990s, twice by President Ghulam Ishaq Khan and once by President Farooq Leghari. Today, the prime minister faces no such constitutional perils from President Mamnoon Hussain.
Pursuant to the constitution’s Article 91 (7), ‘the Prime Minister shall hold office during the pleasure of the President, but the President shall not exercise his powers under this clause unless he is satisfied that the Prime Minister does not command the confidence of the majority of the members of the National Assembly, in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly.’ If a vote of no-confidence is passed against the Prime Minister by the majority of the total membership of the National Assembly, the president may dissolve the Assembly at his discretion. Significantly however, the anti-defection Article 63-A of the constitution presently forbids a National Assembly member from voting contrary to the directions of his parliamentary party in relation to votes of confidence or no-confidence. Therefore, barring an unlikely mass rebellion against Prime Minister Sharif among the ranks of the PML-N coupled with their effective control of the party’s parliamentary affairs, it remains constitutionally impossible to bring a successful vote of no-confidence against him that may force him out of office.
The prime minister may be under no constitutional compulsion to resign at the moment. But that does not foreclose or limit the independent possibilities of his resignation on moral or political grounds upon which political leaders—including President Ayub Khan in 1969—have been serially forced out of office throughout history across various continents and cultures. Notably, the constitution envisages such possibilities by providing for the prime minister’s voluntary submission of resignation to the president under Article 91 (8).
In the final analysis, it will be the tide of public opinion and not constitutional and legal provisions or principles that will determine the duration of Nawaz Sharif’s third stint as the prime minister. If public opinion against him precipitously slides, he may be heading for the exits out of moral and/or political compulsions sooner than even his fiercest critics anticipated after the last election barely 14 months ago. For Napoleon, public opinion was a thermostat to be constantly consulted. The prime minister should imbibe from this wisdom as he battles through his third term in office.
The writer is a lawyer. He can be reached at as2ez@virginia.edu