KARACHI: Any move by the federal government to impose governor’s rule in Khyber Pakhtunkhwa and then declare an emergency in parts of the province would have to meet distinct constitutional requirements. Constitutional experts say the legality of such intervention would depend on the grounds invoked and the scope of the measures.
While Article 232 of the constitution provides for an emergency in circumstances including internal disturbance beyond a provincial government’s capacity to control, Article 234 -- commonly referred to as ‘governor’s rule’ -- applies when a provincial government cannot be carried on in accordance with the constitution. The two provisions have different consequences for the provincial government and assembly, and an emergency can also affect the exercise and enforcement of fundamental rights.
Supreme Court advocate Basil Nabi Malik explains the distinction: “Article 232 deals with security concerns and disturbances, including war and external aggression, whereas Article 234 deals with situations where a constitutional breakdown has taken place in a province”.
Barrister Ali Tahir puts it more succinctly: “Article 232 is a security emergency; Article 234 is a constitutional breakdown.”
Neither provision gives the federal government unrestricted power to dismiss an elected provincial government. The grounds for invoking each must be established, while the consequences depend on the constitutional powers exercised under it.
High court advocate Hassan Abdullah Niazi says an emergency under Article 232 is intended for severe circumstances involving war, external aggression or internal disturbance beyond a provincial government’s control. “Since we know there is neither war nor external aggression in KP, the government would have to resort to the internal disturbance threshold”, he says.
Article 234, meanwhile, requires the president to be satisfied that the provincial government cannot be carried on in accordance with the constitution. Tahir says this requires a genuine failure of constitutional machinery rather than political disagreement or conflict between the provincial and federal governments.
Citing Mian Manzoor Wattoo v Federation, in which a proclamation was held to fall outside Article 234 because a constitutional breakdown had not been established, Tahir says: “If the KP Assembly is functioning, the chief minister commands its confidence and the constitutional machinery continues to operate, Article 234 becomes very difficult to justify merely on political or security grounds”.
Niazi also questions the grounds for federal intervention in KP, saying: “What is it about KP, beyond the fact that it is led by a party in opposition to the centre, that necessitates this act?”
One of the key questions surrounding the reported federal plan is whether an emergency could be restricted to selected districts rather than imposed across the province.
Tahir says the constitution provides a basis for such an arrangement, pointing to Article 232’s reference to Pakistan “or any part thereof”. Article 232(2)(a) also allows parliament, during an emergency, to legislate for a province “or any part thereof”. “The constitution therefore does not say that an Article 232 emergency must necessarily cover the whole province”, he says.
Hafiz Ehsaan Ahmad Khokhar, a Supreme Court advocate, similarly argues that an emergency may be confined to an area affected by a qualifying threat, provided the proclamation meets the constitutional grounds and procedural requirements.
A ‘partial emergency’, he says, is “not a separate constitutional category; its legality depends on the actual terms and legal basis of the proclamation”.
Malik also believes the wording permits a geographically limited emergency, although he says the question of whether a provincial assembly resolution is required involves competing interpretations.
“Textually, Article 232 seems to permit the imposition of an emergency partially. This appears to be the case on account of the use of the phrase ‘or any part thereof’ in the said article”, he says. He adds that an interpretation preserving the provincial government’s role would better serve the federal character of the constitution.
Article 234, however, presents a different question. Since it concerns the inability of a provincial government to function in accordance with the constitution, Tahir says imposing governor’s rule in only selected districts would be harder to reconcile with its wording. Khokhar cautions that a geographically limited emergency does not automatically authorise the federal government to take over the provincial administration.
On whether the centre can impose governor’s rule across KP and then declare an emergency in selected parts of the province, Niazi feels that “would make no sense. To impose an emergency only in certain parts of a province would require Article 232 because it allows for an emergency if the security of Pakistan or any part thereof is threatened by war or external aggression. Then, parliament has the power to make laws for a province ‘or any part thereof’. That wording suggests it is technically possible but only in cases of war or external aggression. Internal disorder in a province would still require provincial assent”.
Article 234, on the other hand, appears to apply to the entirety of a province as it doesn’t use the same wording. Niazi asks why one would need to invoke 232 “when 234 gives you all the same powers”. The answer, he says, “might be in the duration. A 232 emergency stays in place until revoked; 234 has a maximum time limit. So the federal government would have to both argue (and prove!) that there is war and external aggression in KP, but only in some parts. Everywhere else there is a failure of constitutional machinery. That would make a joke of the constitution and would definitely violate the spirit of the emergency articles, if not the text. It would be a convoluted argument that would have a hard time passing constitutional scrutiny”.
Tahir, however, believes the sequence is constitutionally possible, provided each measure independently meets its requirements. He says that “On a strict textual reading, nothing in Articles 232 or 234 prevents governor’s rule under Article 234 from being imposed first and a separate emergency under Article 232 being declared afterwards. But each provision must independently satisfy its own constitutional requirements. Article 234 would first require the constitutional basis that the provincial government cannot be carried on in accordance with the constitution, followed by the president’s proclamation and the required parliamentary approval. After that, Article 232 could be invoked separately in specified parts of KP if a grave emergency arises from internal disturbance beyond the provincial government’s power to control. My view is that this sequence is constitutionally possible, but Article 234 cannot be used simply to create or manufacture the conditions for Article 232”.
On consequences, under Article 232, the provincial government and assembly are not automatically abolished. The federal government may assume all or specified provincial government functions, while parliament can legislate on provincial subjects during the emergency within the constitutional framework.
Malik says the chief minister’s office would remain intact, although the federal government could take over provincial executive functions. The assembly could continue making laws, but federal legislation would prevail where it conflicts with provincial law on matters parliament is constitutionally empowered to legislate on during the emergency. Article 233 also provides for certain consequences relating to fundamental rights. Under Article 234, the president may assume provincial executive functions, direct the governor to exercise them and enable Parliament to exercise the provincial assembly’s legislative powers.
Niazi says a chief minister cannot be permanently removed through an emergency proclamation after the 18th Amendment; removal must take place through the provincial assembly. Adding to this, Tahir points to Pir Sabir Shah v Federation, a Supreme Court case in which the court held that Article 234 was temporary in character and could not be used to permanently extinguish the cabinet or assembly.
