Emergency or governor's rule in KP: What legal options does Centre have to intervene?

To understand the mechanism and structure of Articles 232 and 234 of the Constitution of Pakistan, we need to understand that the basic structure of our Constitution depends upon the trichotomy of powers, which means the division of state responsibilities into three distinct and independent branches to prevent the concentration of power.

This constitutional principle is also known as the separation of powers, which divides authority so that each branch acts as a check on the others. Primarily, three branches exist, namely the Legislature, Executive and Judiciary.

The current legal and political debate in Pakistan revolves around whether the federal government can impose an emergency or governor’s rule in KP.

So, we need to understand that Chapter 10 of the Constitution, i.e. emergency provisions, deals with such issues from Articles 232 to 237. Under the Constitution, three kinds of emergencies can be proclaimed:

However, for relevance, we will discuss and conduct a comparative analysis of Articles 232 and 234 and how and when these provisions can be invoked in a province.

So, in the above situations, the president, on the advice of the federal government, can issue a proclamation of Emergency in a province under Article 232.

Thereafter, the federal government may assume all the executive powers of the provincial government itself or direct the governor of the province to assume such powers on behalf of the federal government. This means that the Executive, i.e. the government of a province, which includes the chief minister and his cabinet, will be suspended, and the governor, on behalf of the Centre, will take charge of the executive matters of the province, including day-to-day affairs relating to the enforcement and implementation of laws and other administrative matters.

However, it is relevant to note that via the 18th Amendment, Article 232 was amended. If the President/federal government wants to issue a Proclamation of Emergency under Article 352 on account of a threat of war or external aggression, it can do so without the approval of the provincial assembly. However, if the federal government issues a proclamation of Emergency on the ground of internal disturbance in a province, it must obtain a resolution from that province's provincial assembly.

So, if the federal government wants to use Article 232 for an emergency or governor’s rule, it has to meet the mandatory requirement stated in Article 232. If this is not done, approval shall be sought from both Houses of Parliament within 10 days; otherwise, the emergency or governor’s rule will lapse.

It is also pertinent to mention here that if a proclamation of Emergency is issued under Article 232, only the Executive, i.e. the government of that province, will be suspended, not the provincial assembly. The provincial assembly shall remain intact and functional even during the emergency.

All MPAs can retain their seats, debates, discussions and sessions may continue, and the provincial assembly shall retain its legislative powers. However, by virtue of the emergency, parliament, i.e. the National Assembly and Senate, will also acquire the power to legislate upon provincial matters.

If there is any conflict between a law made by the provincial assembly and one made by parliament, then during the emergency, the law made by parliament will have overriding effect.

As far as the time limit of an emergency under Article 232 is concerned, there is no absolute cap because the Constitution deliberately omits such a limitation from Article 232. Under Article 232(7) and Article 232(8), the Constitution defines how long an emergency may remain in force.

It ceases to be in force at the expiration of two months unless approved by a resolution of parliament. Once approved, it can remain in force for a period not exceeding six months at a time. However, as long as parliament continues to pass a resolution approving it every six months, the emergency may remain in effect. There is no clause stating a point at which parliament loses the authority to pass another six-month extension.

Under Article 232, an emergency ends in one of three ways: the president revokes it, parliament fails to pass an approval resolution before the deadline, or parliament passes a resolution disapproving it under clause (7)(b).

The requirement and ground for issuing a proclamation under Article 234 is the “failure of constitutional machinery in a Province.” The threshold for this is not low and the phrase itself is not defined by the Article. However, as per judicial interpretation, the relevant circumstances must demonstrate that the government of the province cannot be carried on in accordance with the provisions of the Constitution.

Unlike Article 232, no approval from the provincial assembly is required to issue a proclamation under Article 234. Moreover, unlike Article 232, where the executive power of the provincial government, i.e. the chief minister and his cabinet, may be assumed and exercised by the governor on behalf of the federal government, under Article 234 the powers and functions of the provincial assembly may also be taken away and remain suspended during the emergency, and the legislative powers of the provincial assembly may be exercised by parliament.

Unlike Article 232, where there is no absolute cap on how many times parliament can re-approve the emergency, Article 234(3) of the Constitution of Pakistan sets procedural timeframes and strict duration limits for a proclamation under Article 234.

Once issued, the proclamation must be laid before parliament. It automatically ceases to be in force after two months unless parliament approves it by resolution before those two months expire. Parliament can extend the proclamation by passing a resolution, but only for up to two months at a time. Most importantly, no proclamation issued under Article 234 can remain in force for more than six months in total.

So, the most frequently asked question is whether the federal government, parliament, president or governor can permanently remove an elected chief minister. The answer is simply ‘no’.

After the 18th Amendment, an elected chief minister cannot be removed except in accordance with the requirements provided under Article 130(7), under which the governor may require a chief minister to obtain a vote of confidence.

If the chief minister obtains the required majority from the provincial assembly, no authority can remove or send home the elected chief minister on that basis. Similarly, the provincial assembly cannot be dissolved merely at the discretion of the governor, as the 18th Amendment removed Article 112(2)(b) and took away such discretionary powers.

Moreover, when an emergency proclaimed under the relevant Article comes to an end, the elected chief minister shall again hold office and the provincial assembly shall regain its constitutional powers of legislation. Legislation made during the emergency will thereafter be governed by the relevant constitutional provisions concerning its continued operation.

Furthermore, routine political differences, protests or a strained relationship between the Centre and a province cannot, by themselves, constitutionally justify federal intervention under Article 232 or Article 234.

The Constitution of Pakistan establishes a federal system in which provincial autonomy is protected, and the superior courts have consistently held that extraordinary emergency powers cannot be used merely as a political tool to unseat or bypass an opposition provincial government.

Ordinary law and order issues or protests fall within the normal powers of the provincial government. To trigger Articles 232 and 234, the respective constitutional requirements must be satisfied: under Article 232, the internal disturbance must be beyond the power of the provincial government to control, whereas under Article 234, there must be circumstances in which the government of the province cannot be carried on in accordance with the provisions of the Constitution.

If the federal government acts without the legal justification, requirements and grounds provided in the said Articles, it is important to note that Article 236 places a bar on questioning the validity of a proclamation issued or order made under the relevant emergency provisions in any court. This raises an important question regarding the availability and scope of judicial review where the federal government allegedly acts with ulterior motives or without satisfying the constitutional requirements.

However, in the past, we have seen precedents where courts have intervened in such matters and declared actions illegal and void through judicial review.

The superior courts may examine whether the constitutional circumstances existed to justify an action of the federal government, particularly where such action affects constitutional or fundamental rights. The courts, being guardians of the Constitution and fundamental rights, retain an important constitutional role in examining the lawful exercise of public power.

Critics argue that emergency provisions disrupt two core pillars of the Constitution, i.e., federalism and democracy. Bypassing an elected provincial chief minister and assembly concentrates power in the federal executive, turning a federal system into a temporary unitary state.

The writer is an advocate of the high court.

Disclaimer: The viewpoints expressed in this piece are the writer's own and don't necessarily reflect Geo.tv's editorial policy.