Provincial Assembly of Khyber Pakhtunkhwa

According to Article 113 of the Constitution, the qualifications for membership in the National Assembly set forth in Article 62 of the Constitution also apply for membership to the Provincial Assembly. Thus, a member of the Provincial Assembly:

1. must be a citizen of Khyber-Pukhtunkhwa;
2. must be at least twenty-five years of age and must be enrolled as a voter in any electoral roll in–
   1. any part of Khyber-Pukhtunkhwa, for election to a general seat or a seat reserved for non-Muslims; and
   2. any area in Khyber-Pukhtunkhwa from which the member seeks membership for election to a seat reserved for women.
3. must be of good character and not commonly known as one who violates Islamic injunctions;
4. must have adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins;
5. must be sagacious, righteous, non-profligate, and honest;
6. must have never been convicted for a crime involving moral turpitude or for giving false evidence;
7. must have never, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan.

The disqualifications specified in paragraphs 3 and 4 do not apply to a person who is a non-Muslim, but such a person must have good moral reputation and possess other qualifications prescribed by an act of Parliament.

The criteria for disqualification of members of a Provincial Assembly is established by Articles 63, 63A, 113 and 127. A person shall be disqualified from being elected or chosen as, and from being, a member of the Provincial Assembly if the member:

1. is of unsound mind and has been so declared by a competent court; or
2. is an undischarged insolvent; or
3. ceases to be a citizen of Khyber-Pukhtunkhwa, Pakistan or acquires the citizenship of a foreign State; or
4. holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or
5. is in the service of any statutory body of any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or
6. is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan; or
7. has been convicted by a court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force; or
8. he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Provincial Government or a Local Government on the grounds of misconduct or moral turpitude; or
9. has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Provincial Government or a Local Government on the grounds of misconduct or moral turpitude; or
10. has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or
11. is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect; or
12. has been convicted under section 7 of the Political Parties Act, 1962 (III of 1962), unless a period of five years has elapsed from the date of such conviction; or
13. whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government.

Article 63A, which deals with disqualification on grounds of defection, was added to the Constitution in 1997. A member of a Parliamentary Party composed of a single political party defects if the member:

1. resigns from membership of the political party or joins another Parliamentary Party; or
2. votes or abstains from voting in the Provincial Assembly contrary to any direction issued by the Parliamentary Party to which the member belongs, in relations to
   1. election of the Chief Minister; or
   2. a vote of confidence or a vote of no-confidence; or
   3. a Money Bill.

Article 66 read with Article 127 confers freedom of speech on the members of the Provincial Assembly. No member is liable to any proceedings in any court of law in respect of anything said or any vote given by him in Assembly. Similarly no member is liable in respect of any publication which is published under the authority of Provincial Assembly.

However, Article 114 of the Constitution curtails this privilege and prohibits members from discussing conduct of judges of High Court and Supreme Court in the discharge of their duties.

(a) Oath of Members. – After general elections, elected members in the first meeting take oath in the form set out in Third Schedule of the Constitution. Article 65 read with Article 127 states "A person elected to a House shall not sit or vote until he has made before the House oath in the form set out in the Third Schedule". Those members who have not taken oath in the first meeting take oath when they attend a meeting for the first time. The first meeting is presided by the outgoing Speaker. Article 53 (8) read with Article 127 says "the Speaker shall continue in his office till the person elected to fill the office by next Assembly enters upon his office." (b) Election and oath of Speaker and Deputy Speaker. – In addition to oath taking by the members, Provincial Assembly according to Article 108 to the exclusion of any other business, elect from amongst its members a Speaker and a Deputy Speaker. When office of Speaker or Deputy Speaker becomes vacant, in any way, the Assembly elects another member as Speaker or Deputy Speaker.

The elected Speaker and Deputy Speaker according to clause 2 of Article 53 read with Article 127 take oath before the House in the form set out in the Third Schedule.

Article 109 authorizes the Governor of the Province to summon Provincial Assembly to meet at such time and place as he thinks fit. Where the Governor summons Assembly he is authorized to prorogue it too. In addition, the Speaker, on a requisition signed by not less than one-fourth of the total membership of the Provincial Assembly, can summon it, at such time and place as he thinks fit, within fourteen days of the receipt of the requisition. Article 54(3) read with Article 127 also empowers the Speaker to prorogue the session where he summons it.

Article 54 (2) and (3) read with article 127 say there are at least three sessions of Provincial Assembly every year, with not more than 120 days intervening between the last sitting of the Assembly in one session and the date appointed for its first sitting in the next session. While clause 'g' of Article 127 read with Proviso to Article 54 provides that Provincial Assembly shall meet for not less than 70 working days in each year.

The term of Provincial Assembly in Pakistan according to Article 107 is five years unless it is sooner dissolved, from the day of its first meeting and stands dissolved at the expiration of its terms.

(a) Dissolution of Provincial Assembly on the advice by the Chief Minister. – Under Article 112, clause 1, the Governor of a Province is empowered to dissolve Provincial Assembly if so advised by the Chief Minister. Where the Chief Minister so advises, the Provincial Assembly stands dissolved at the expiration of 48 hours. (b) Dissolution of Provincial Assembly by the Governor on the approval by the President. – Clause 2 of the same Article again empowers the Governor to dissolve Provincial Assembly subject to the approval of the President, where he is of the opinion, that after having been passed a vote of no confidence against the Chief Minister, there is no other member of the Provincial Assembly to command the confidence of the majority of the members of the Provincial Assembly, in a session of the Provincial Assembly summoned for the purpose.

Executive Authority is exercised by the Governor and under Article 105, he shall act in accordance with advice of the cabinet or the Chief Minister.

According to clause 2-A of Article 130, the Governor of a Province invites the member of the Provincial Assembly to be the Chief Minister who commands the confidence of the majority of the members of the Provincial Assembly as ascertained in the session of the Assembly summoned for the purpose in accordance with the provisions of the constitution.

There are three major functions or powers of a Provincial Assembly:

1. To make laws (Article 141 and 142 of the Constitution of Pakistan)
2. To manage the purse of the province (Article 123 (3))
3. To keep checks on the policies and practices of the Government (Article 130)

One of the major functions of the Provincial Assembly is to make laws as provided in Article 141 and 142 of the Constitution for conferring of functions upon officers or authorities subordinate to the Provincial Governments, Constitutionally. This function is subject to some limitations.

1. Under Article 142, a Provincial Assembly cannot legislate when an emergency is declared in the country.
2. A Provincial Assembly cannot make law which is against fundamental rights.
3. Principles of policy or rule of law should be the base of each law.
4. A law cannot be enacted if it is not in conformity with the injunctions of Islam.
5. Under Article 142, the Provincial Assembly cannot legislate on matters which fall in the Federal Legislative List.

The Provincial Assembly has exclusive powers to make law with respect to any matter not enumerated in the Federal Legislative List. Residuary matters are exclusively within Provincial autonomy. From the above, it cannot be extracted that the Province is subordinate to the Federation or Federation is subordinate to Province. In fact, legislative powers are distributed between Federation and Provinces via Article 142. And one institution cannot take over powers of other institution. However, this provincial law making power comes to an end and shifts to the Federation during emergency when declared vide Articles 232, 233 or 234.

Provisions given under Article 120 dealing with annual budget statement and Article 124 dealing with supplementary budget or excess grant become effective, when it is approved by the Provincial Assembly.

Article 122(2) and Article 124 authorise Provincial Assembly to approve or refuse any demand and reduce the amount specified in the demand. Once budget is approved, the Government has no right to deviate from these sanctions. For excess expenditure, Government has to seek regularization from the Assembly. Similarly under Article 88 read with Article 127, accounts and audit reports of the Government are further scrutinized by the public accounts Committee of the Assembly.

The significance of Provincial Assembly is that it is a representative institution and keeps checks upon policies, practices and performance of the Government. Article 130 (4) says that the Cabinet shall be collectively responsible to the Provincial Assembly.