PARLIAMENTARY STRUCTURE

Article 50 of the 1973 Constitution provides that ‘Parliament shall consist of the President and two houses to be known respectively as the National Assembly and the Senate’. The formula of electing repre­sentatives to the two assemblies is described below and, following that, the relative place of each assembly in the broader legislative process is detailed.

A. Representation

Article 51 lays out numbers and classes of seats to be occupied through a mixed system of representation for the lower house, the National Assembly. The majority of the 272 seats in the lower house of Parliament are ‘single-member territorial constituencies’ where repre­sentatives are ‘elected by direct and free vote in accordance with law’. These general seats have been apportioned to the provinces, Federally Administered Tribal Areas (FATA) and the federal capitals ‘on the basis of population in accordance with the preceding census officially published’.

In addition to these general seats, an allocation for women’s seats is made to political parties to fill in accordance with the share of general seats won in a given election. In the making of the 1973 Constitution, 20 seats in total, for a period to last 10 years, were marked as women’s seats.¹ However, when elections were once again held from 1985, the provision had lapsed and there were no reserved seats for women until 2002.^[158] [159] The total number of such seats is now 60, as per the Conduct of General Elections Order of 2002, promulgated by General Musharraf.^[160] Women are not barred, nor have they been in any electoral contest, from campaigning for general seats.

The other class of seats also filled on the basis of proportional rep­resentation is non-Muslim minority seats. In the previous two Constitu­tions, religious minorities were accorded no special or differential status in terms of political representation, although the Second Constituent Assembly did vote on dividing the electoral system for West Pakistan between Muslims and Non-Muslims after the 1956 Constitution had been passed. The Fourth Amendment to the 1973 Constitution intro­duced six minority seats to be filled in the same manner as women’s seats. In 1985 the Zia regime increased the number of these seats to ten, but also provided that the electorate was to be split between Muslims and non-Muslims. A challenge to the Supreme Court alleging discriminatory treatment failed in 1989 and the system of apartheid­like dual electorates was in place for a total of five elections.^[161] A uni­fied electorate was restored in 2002, while the ten minority seats were retained as special representation for minorities. While Musharraf’s 2002 Conduct of General Elections Order also removed the stipula­tion that prevented non-Muslim minorities from contesting general seats,^[162] the need for candidates to declare their religion, coupled with the criteria of qualification and disqualification under Articles 62 and 63, discussed further below, reinforce the impression that only Muslims can compete for them.

In addition to the 342 representatives, inclusive of women and minorities, in the National Assembly, there are 114 members of the Senate. The Senate was established for the first time under the 1973 Constitution to reinforce the principle of inclusive federalism. The formula for its composition is that 14 general members, 4 women plus 4 members who are technocrats or Ulema are to be elected from each of Punjab, Sindh, Khyber Pakhtunkhwa and Balochistan. In addition, one member of a religious minority is also to be elected from each of the assemblies.

In each military coup after the promulgation of the 1973 Constitu­tion, the Senate has been dissolved alongside the National Assembly. When Zia first introduced a merely consultative and appointed assem­bly known as the Majlis-E-Shoora in 1982, there was no accompanying Senate. It was resurrected in 1985 through the Revival of Constitution Act.

B. Legislative Process

The structure of bicameralism in Pakistan inscribes the primacy of the popularly-elected lower house in several ways. It is largely from within the National Assembly that the federal government is formed, and this is also the forum for unseating a government through a vote of con­fidence. Additionally, the lower house retains the sole prerogative of legislating upon financial matters.

Article 91 defines the federal government as being incorporative of a ‘Cabinet of Ministers, with the Prime Minister at its head,’ to aid and advise the President. The office of the Prime Minister is to be filled by a majority vote of the National Assembly after electing a Speaker and Deputy Speaker. The Prime Minister is required to be a Muslim mem­ber of the National Assembly.^[163]

In conventional parliamentary terms, the Prime Minister is head of government and usually also the leader of the party that gains a major­ity of seats in elections. In the absence of a majority win, coalition governments have on occasion been created. With only two dominant parties, the pragmatism of Pakistani politics is reflected in that such coalitions have often been built across deep ideological fissures. The leader of the opposition is also voted in by popular vote of Assembly members, and the person who wins a majority is thus notified.

In the Senate, a popular vote takes place every three years to vote in a Chairman.

For the composition of the federal government, a Cabinet of min­isters is to be appointed by the President, on the binding advice of the Prime Minister. There is no constitutional stipulation about the number of Cabinet positions or the ministerial portfolios to be established. Cabinet ministers are, by specification of Article 92(3), to be members of the National Assembly or the Senate. However, the allowance for appointment of senators is capped at 25 per cent of overall Cabinet positions, although their powers and entitlements are the same as min­isters from the National Assembly.^[164]

It is stated by way of Article 92(6) that the ‘Cabinet, together with the Ministers of State, shall be collectively responsible to the Senate and the National Assembly’. This is a specific alteration dating from the 1985 Eighth Amendment Act and is significant both for formally levelling the powers between Prime Minister and Cabinet members and for ensuring that the executive powers exercised by them are subject to democratic checks. The internal check on governmental functioning is provided in Article 95 as the vote of no-confidence in the Prime Min­ister. The required trigger is a resolution passed by 20 per cent of the members of the National Assembly calling for such a vote. If then a majority of the assembly members vote in favour, the Prime Minister, and in accord with convention, the Cabinet, cease to hold their offices.

Another intended mechanism for oversight of executive functions is provided in the parliamentary committee structure. Since 1992, through alterations to relevant parliamentary rules, the role of parliamentary committees has also become more formalised. The National Assembly and the Senate each have committees that broadly correspond with each ministry, and are meant to provide oversight into their working. In addi­tion, a few special committees exist that are solely concerned with the internal administration of the house, including the Finance Commit­tees of both houses, established by way of Article 88, to regulate their expenditure. The permanent committees of the National Assembly are comprised of 17 members voted in shortly after the inaugural session. Senate committees are also generally reconstituted after an election.

An important role of committees is to scrutinise proposed legisla­tion in the course of parliamentary deliberation. According to the procedural manual of the National Assembly, the ‘ever-increasing com­plexity of a Legislature’s role’ has resulted in a corresponding increase in reliance on parliamentary committees. Additionally, special commit­tees such as those that drafted the reform package of the Eighteenth Amendment and the currently-functioning electoral reforms commit­tee are tasked with the responsibilities of proposing legislation.^[165]

Constitutional provisions establishing legislative procedure are con­tained in Articles 70-83. These provisions provide that a Bill on any subject-matter contained in the federal legislative list can be initiated in either house of Parliament subject to the exception that money Bills are exclusively to be introduced and passed by the lower house.

Article 71 enables the President to call for a joint sitting of both houses and this provision is used mostly in instances where quick action is needed and/or debate is sought to be foreshortened. Addi­tionally, in recent times parliamentary committees tasked with oversight of foreign affairs matters have presented their findings to such joint sit­tings prior to a parliamentary resolution being passed. The passage of Bills, motions and resolutions through joint sessions requires a majority from the combined numbers of overall legislators. This has the effect of diluting the influence of smaller provinces as well of the Senate overall, so the use of Article 71 is often resisted for these reasons.

In terms of actual practice, it is the case that far greater numbers of government Bills are introduced in the National Assembly than in the Senate. There is no such discrepancy with regard to private members Bills, even though fewer Bills on average are introduced in the Senate.

Although of course subject to the qualification that both houses of assembly have been suspended upon a military take-over, there is an aspect of the permanence of the Senate that is of consequence with regard to the processes of legislating. In cases of dissolution of the National Assembly, Bills passed in either house prior to such dissolution will not lapse as a consequence. This is said to provide a ‘significant measure of legislative continuity’.^[166] This belief is also due to the perception that more ‘senior and saner politicians’ are to be found in the Senate than in the National Assembly. However, because the manner of election to the Senate requires political parties to nominate their candidates in provincial legislature, the opportunity is availed to dispense patronage or to simply reward loyalists without account of their suitability.^[167]

C. President in Parliament

The original 1973 Constitution reflected a consensus about parliamen­tary structure that cast the head of state, the President, in a mainly

ceremonial role. A significant alteration was made when, through a Presidential Order in the lead up to Zia’s move to share power with elected representatives, the office of the President was included within the institutions of Parliament in 1985. A set of additional revisions, including the investment in the President of the power to dissolve the lower house, were undertaken and affirmed through the Eighth Amendment Act of 1985 by the Assembly constituted through the popular, although non-party, elections of that year. While some of the Zia-era alterations have been repealed, an array of others continue to be unchanged or only moderately revised.

Searches for judicial aid in favour of returning the constitutional structure to what it had been in the 1973 Constitution have repeatedly failed. A petition filed in 1989, after a second election had taken place under the radically amended Constitution, failed to convince the Sindh High Court that this package of changes was ultra vires for being authored by a military ruler. Rather, the bench cautiously warned that as the ‘present legal edifice is based on the amended Constitution, if we take out some amended provisions the superstructure of democracy built on it may collapse’.¹¹

It has thus been up to legislators to either work within or modify these alterations. Importantly, the President exercised discretionary authority to call or delay the initial sessions of assemblies until an amendment was made in 2010 to ensure that the National Assembly be convened no later than 21 days after a general election. Additionally, the Revival of the Constitution of 1973 Order of 1985 provided that the President would appoint as Prime Minister whomsoever he felt would command the confidence of a majority in the house. In the Eighth Amendment adopted shortly after by a newly-elected Assembly, this was made subject to the condition that the appointee would gain a vote of confidence from the Assembly within 60 days. These two fea­tures of discretionary authority made for heightened political drama in 1988 when the President delayed appointing Benazir Bhutto as Prime Minister in an attempt to engineer a coalition government by estab­lishment-friendly parties. As noted earlier, the situation now is that the Prime Minister is elected by a majority vote in the National Assembly. ^[168]

The further important power that the President wields is that of granting assent to Bills passed in both houses of Parliament, which is the point at which they become law. Presidential assent is a necessary and final step in law making and although the effect of withholding assent has been of shifting consequence, it has never amounted to a veto when the Constitution is in effect.

There was no consequence at all of the President’s refusal accord­ing to the original articles of the 1973 Constitution, and assent was deemed to be given at the elapse of seven days. In 1985 the period granted for presidential assent was increased to 30 days and an amend­ment made to enable the President to revert a Bill for a second vote. In exercise of these powers, President Leghari delayed granting assent to a Bill forwarded by the Nawaz Sharif government in the midst of the latter’s heightened public rift with the Supreme Court.^[169] Chief Justice Sajjad Ali Shah directed the President, through an interlocutory order, to withhold assent on the passage of a contentious Bill on the ground that it was ‘unconstitutional’. This was an unprecedented act that was soon reversed by a differently-constituted bench of the Supreme Court. In Navid Malik v President of Pakistan Chief Justice Ajmal Mian clarified that the judiciary had no place interfering in the processes of law mak­ing, but could only engage its powers of review once a law had been proclaimed.^[170]

Since 2010, once a Bill has been passed in both houses, it then travels to the President for assent. The President is required to assent within ten days, but for all Bills other than money Bills, the President can return the Bill unsigned and with or without recommendations to the assemblies. If once again passed in a joint sitting of both houses, it will go back to the President. If the President fails to then sign the Bill into law within ten days, assent will be deemed to have been given.

II.