Constitutional Challenges – How to resolve

Did we ever think why for each small and simple step the politicians in other democratic countries do not need to go the courts for interpretation of constitution? Why are other developed countries’ constitutions so clear and unambiguous?  Why can they easily refer to their constitution and seek direction? Why is the functioning of governments in other countries easier and smoother? 

I am sure all of you know the answer. Their constitution, policies, procedures and rules of business must be very clearly written. 

Then the next questions coming to our mind are: 

• Why are their documents so clearly written 
• Was it written that way from day one? 
• What can we do to ensure we have a similarly clearly written constitution, policies, procedures, and rules of business? 

The answer to all above is again very simple.  It was not that clear and unambiguous from day one. Over a period of time, they have followed a process of adding clarity to unclear parts and removing ambiguity from confusing or conflicting parts. We can do it too I.e. Continue clarifying and improving the same. That’s how they did it and that’s how we can do it, of course, if we want to. 

Let’s take a recent example: 

Recently the Governor of Punjab province in Pakistan instructed the elected Chief Minister of Punjab Province to take a vote of confidence and as in his (governor’s) opinion the Chief Minister had lost majority in the house.  

Several questions came up, such as: 

• Does the governor hold such authority? 
• Can the governor ask the above entirely on his own discretion? 
• Can the governor ask the above any time or need to give some notice period? 
• Does the governor need to offer some reasons for his belief? 
• What are acceptable reasons based on which the governor can ask the above? 

These are all very good and valid questions, and our constitution has not identified all of the above in a clear manner, so it was fair for the concerned parties to reach out to an arbitrator, the courts in this case, for clarifications and interpretation. Maybe it was happening for the first time (though we know that is not the case) and no one thought that this part of the constitution was not clear enough.  

No worries. Let’s take all of the above questions to the Superior Court and seek an explanation and/or interpretation of the constitution. The result would be either the court would be able to answer all the above concisely and clearly or some confusion still remained, and politicians were needed to settle things themselves, in one way or the other. 

Whatever the results are, few things would get clarified/addressed and the politicians will move ahead with few agreements or disagreements. Things will move on. The matter will get handled. 

Work for improving the Constitution will start after all above. All the above exercises identified the need for some future action I.e., adding clarity on the above questions in the constitution. 

What needs to be done is that this ambiguous part of the constitution should be marked somewhere as a to-do list. Once the dust gets settled and the assembly starts working in a normal manner, this to-do list should be pulled out. Either using the court’s decision or through mutual consultation, as per the legislature’s procedures allow, the matter should be brought up, consulted and the agreed upon details should get added to the constitution in a crisp and clear manner, either in the form of an enhancement or as a modification. Assembly Secretariat can define the right procedures to be used. 

Let’s assume that the outcomes of above questions by courts or by politicians were as under: 

• The governor does hold the authority to ask the province’s Chief minister to seek a vote of confidence from the provincial assembly 
• The above is NOT a discretionary power and can be taken only when the governor can confirm that either one or more of the following conditions have been met: 
  • Condition # 1 
  • Condition # 2 
  • Condition # 3 

• Before taking the above action, the Governor must provide an opportunity to the Chief Minister to disprove Governor’s belief 
• After Chief Minister fails to satisfy the Governor can issue a notice to the Chief Minister to prove his majority 
• Chief Minister will be allowed X number of days to prove his majority 
• The Governor’s notice will get implemented after completion of current session of the assembly OR after Y days whichever is earlier 

Now the above description appears clearer. When a similar situation comes again, which does happen in the life of nations, this part of the constitution is crisp and clearly explains what can or cannot be done by whom, in what time and under what conditions as per the constitution. Before taking any action, relevant authorities know what they are authorized to do and what they are not, there is no confusion and there is no need to involve courts and waste their time. 

A similar practice should be followed any time the constitution is unclear and/or is ambiguous in any other section. Over a period of time the document called the Constitution will continue getting clearer and the functioning of the government will become smoother and smoother. 

Will the above exercise ever finish? May be never. There will always be a to-do list that the assembly will need to deal with. It may never be able to fully catch up with the to-do list, but that’s ok, as long as the cycle continues things will continue getting better and better.  

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Babar Saeed

bsaeed@yahoo.com

December 26, 2022