Article 106 of the constitution is clear

Dear Editor,

I see the PPP is playing a troubling game. Clearly, it does not want elections with the numbers from its own pollster at Freedom House and from its own activists in the streets telling it that it will lose votes and get a smaller plurality. So, it will delay and deny and play silly games to avoid facing the electorate. The concern I have is this calculated PPP campaign to discredit the constitution and the law in order to avoid the looming no-confidence vote. I am no lawyer or constitutional expert but I can read the constitution and can interpret what I read. Article 106 is straightforward and quite clear. It does not provide for judicial review of a successful no-confidence vote. This was an illegal constitution written by a regime seeking to maintain power illegally. So, if the PNC intended to make article 106 subject to judicial review, it would have done so. It didn’t. Article 106 is explicit and indisputable. The President and Cabinet and government must resign and new elections must be called within three months.

The pro-PPP backers are claiming there must be special elements to the wording of a no-confidence motion. That is nonsense. That old parliamentary democracy in the UK which gave us our Westminster model passed a no-confidence motion on March 28, 1979 to defeat the minority government of James Callaghan. The motion read, “That this House has no confidence in Her Majesty’s Government.” In Canada, as recently as November 28, 2006 an opposition motion brought down the government. That motion read, “That this House has lost confidence in the government.” That was all. Nothing more. There was no resort to judicial review. Elections were promptly called. 23 no-confidence votes have been brought in UK parliamentary history. UK governments have lost four no-confidence votes since 1895 (June 21, 1895; January 21, 1924; October 8, 1924; March 28, 1979). In two cases, the Prime Minister resigned and the Leader of the Opposition formed a government. In the other two cases, the Prime Minister called general elections. There is no specific wording or formulation. Mere mention of no confidence suffices as the UK’s successful March 28, 1979 motion established. Unambiguous and direct communication to the government that it will be brought down in a vote – like the opposition has publicly done in this instance – is enough. Any opposition is entitled to vote on a lack of confidence in the government with the intent to bring down the government.

Judicial review as proposed by the PPP is not a genuine attempt to get the court’s opinion but, given the sloth of our legal system, a blatant attempt to deny and delay elections thus ensuring the PPP remains illegally and unconstitutionally in power. The attempt to raise Article 180 which deals with removal of the President following an investigation is another red herring. The argument is that if investigation is necessary under Article 180 then it is necessary under article 106 before a no-confidence vote succeeds. An investigation is not judicial review. This is unadulterated codswallop. If the constitution framers wanted Article 106 to be the same process as Article 180, they would have done so, particularly when the constitution was framed to maintain dictatorial power. In any event, Article 180 applies to acts of gross misconduct particular and specific only to the President. The tribunal is not a court of law. It is an internal tribunal. Before the tribunal is appointed, the National Assembly is allowed to vote, without debate, to proceed to the tribunal. So, there is a vote without debate to proceed to the tribunal. There is no procedure of judicial review of the findings of the tribunal. The findings are voted on by the National Assembly and if successful, the president is removed from office. Now, if there is no avenue for external judicial review in Article 180, how could the intellectual charlatans contend that judicial review is a god-given right in Article 106? A no-confidence vote is dramatically different from the impeachment of the President. One is based on very specific allegations of wrongdoing by the president while the other is a loss of confidence in the government and president and cabinet in their governance of the country. It is this stark and fundamental difference that explains the difference in how Article 106 and 180 are worded, framed and must be interpreted. To impute the procedures from one article in the other when they are both explicit in their procedures as they pertain to different situations is cheap and laughable constitutional and legal tomfoolery.

No one is entitled to use the excuse of judicial review in cases of unequivocal constitutional rules to remain in power illegally. That blatant course of conduct will plunge this country into severe constitutional crisis. Now, there is the other puerile position parroted by a senior PPP functionary that all members of the National Assembly must be present for a vote of no-confidence to have legal effect. The thinking is that if the PPP stays away and the entire opposition votes for the no-confidence motion, that motion has no legal effect. Article 106(6) states, “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence.” The vote of the majority is all that is required to defeat the government, cabinet and president. There is no requirement that all elected members of the National Assembly must be present. If that was required, it would have explicitly stated such. The majority of all of the elected members could simply show up and vote and the no-confidence motion has full legal and constitutional effect. Incidentally, in all of the voting provisions of Article 180, there is no requirement for all elected members of the National Assembly to be present.

It is absurd to think that a constitution and its provisions dealing with a critical issue of loss of confidence in a government and the need for new elections could be so simply and injudiciously subverted by the offending government simply staying away from the vote. If this is acceptable, then the PPP would stay away from parliamentary sittings from now until eternity and in doing so avoid the no-confidence vote, postpone elections indefinitely and hold onto power illegally and unconstitutionally using this bizarre stratagem. Clearly, one can see the preposterous illogicality of this adventure. Isn’t engaging in this prolonged absence from the National Assembly in fact abandoning the government’s constitutional duty to represent the people’s interests? Doesn’t this naturally undermine the legal and constitutional authority to govern? Doesn’t this fracture the state irrevocably causing even more problems for the electorate? Do the people at Freedom House thinking one thought at a time without regard to comprehensive analysis and grave consequentiality ever consider the full repercussions of their macabre ideas and how they could unfold to their own demise? It is one thing to pander to their captive constituencies, but it is another to peddle dangerous ideas as legitimate, legal and constitutional when they threaten the very security of this country.

 

Yours faithfully,
M Maxwell



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