KP emergency, governor’s rule: Legal experts explain govt’s constitutional powers

The federal government on Sunday imposed governor’s rule in Khyber Pakhtunkhwa and emergency in 12 districts of the province — effectively ending the provincial government’s powers.

Legal experts weigh in on the constitutional provisions governing emergency rule, the extent of federal powers and the impact of the move on the province’s elected leadership.

‘Right decision, limited time’

— Supreme Court lawyer Haris Azmat

[Articles 232 and 234] are an integral part of the Constitution. In one form or the other, since 1973, the framers of the Constitution envisaged that such a matter would eventually arise, and in such a situation, the federal government would have to act.

So, first of all, it must be clear that the action taken is an absolute constitutional decision. When the federal government perceives that a law and order issue has arisen within a province, or there is an external threat, or an absolute failure of non-governance, it can intervene for a limited time and for a limited purpose.

To achieve this, the entire procedure was followed — cabinet approval, consultation with the president —and following that entire procedure, the federal government has taken this decision.

Of course, the provincial government would certainly want to challenge such matters, and the procedure is given in the Constitution that these matters will go to the Federal Constitutional Court, where they can file a petition, and the FCC can judicially review whether the decision was correct and whether the circumstances cited by the federal government for imposing the emergency existed in the province at that time or not.

Having said that, in my view, as a citizen of Pakistan as well, this decision is a very good decision, in the sense that the reports arriving — reports stating for a long time that there is an absolute failure on the part of the provincial government.

Secondly, severe problems of terrorism exist there, and the life of the ordinary person is going from bad to worse — meant that in such matters, if the federal government had not taken this decision, it would have been a constitutional failure on the part of the federal government to act.

In our legal terms, a term is used called “omission to act” — when you possess the legal power to improve the lives of the general public, to eliminate terrorism, to safeguard the integrity of the country, and yet you do not act, that is also an illegality on the part of the federal government.

Therefore, the federal government has taken this decision following the proper procedure. Yes, that said, this decision is not for four years, five years, or an unlimited period. As the name implies, these emergency procedures are for a limited time. You take action within a limited time, and when things are restored, the Constitution contains a similar mechanism to undo this procedure, which will also take a day, and the whole thing will be undone.

Often, when these emergency situations are imposed — for example, to eliminate terrorism, address external threats, or in the event of war — under these emergency provisions, the federal government has the right, for a very limited purpose, to suspend these provisions so that any law and order or war situation can be resolved.

Within these same provisions, the federal government can act. “Governor’s rule” is, as they say, a layman’s term. Under these provisions, the federal government has the power to instruct the provincial governor — since the provincial governor is the representative of the federal government, appointed on the advice of the Prime Minister — to execute specific tasks on our directions, such as controlling the police or giving directions to any department.

Now, from today onwards, ever since the emergency has been imposed, if two conflicting directions arrive— one from the provincial government and one from the federal government (let’s group the federal government and governor together, or assume a direction comes from the governor today to the IG Police)— whose word will the IG Police obey under the law? Under the law, the IG Police will obey the governor and/or the federal government today.

Similarly, the entire apparatus of the provincial government, including all provincial secretaries and provincial departments, if any conflicting opinion arises now, will listen to the federal government and the provincial government, and implementing their directions has now become their constitutional responsibility until this situation normalises and legal matters return to normal.

As soon as normalisation occurs, within a minute or a day, this entire emergency is lifted. So, just as the name implies, it is an emergency, done for a limited, emergent situation.

‘Chief minister has no power’

— Lawyer Hasan Raza Pasha

The provincial government cannot call [the federal government’s move] unconstitutional because it simply does not have the power. If anyone can call it unconstitutional, it can be the superior courts. Now, even in that, the restriction is that if the President of Pakistan considers that we have to suspend the fundamental rights under the Constitution — for example, Articles 15, 16, 17, 18, 19, and 24 — they have been given this power under Article 233: when an emergency is in force, during that period they can suspend these fundamental rights, which are Articles 15 to 24.

So when they can suspend these, then the High Courts or the Supreme Court cannot take up these matters or deal with them. Although the last provision of Article 232 gives the power to suspend the rest, you cannot suspend the articles relating to the High Courts.

On the other hand, powers were given in Article 233 to the government and the President to suspend the articles of fundamental rights. The reason for this [move being legal] is that the power given in the Constitution has been invoked by the federal government and the President of Pakistan.

And you look at how the entire mechanism was laid out: first, the governor’s report came; reports from various institutions were sent to the President of Pakistan, then a meeting took place in which parliamentarians were present, along with the President of Pakistan and the Prime Minister.

After that, a cabinet meeting was held in the morning, and the cabinet, after a long session, sent a summary to the President of Pakistan, who endorsed it. And the matter does not end just here. There is no second opinion about this: the moment the President of Pakistan put his signature on it, the proclamation order was issued, its enforcement took place, and the notification became just a formality.

Moving forward, it is written in Article 232 itself that the President of Pakistan must send this proclamation order to the Majlis-e-Shoora (Parliament), and both houses of Parliament must separately endorse it, and a timeframe was given, which was that they have to endorse it within 10 days.

So it will not be the case that we wait for Parliament’s endorsement; rather it has already been implemented, and formal endorsement has to be done by Parliament. Certainly, since PTI members are present there as opposition, they will present their stance, and they should; this is the beauty of Parliament. Similarly, the treasury benches will present their stance; there will be debates, but the deadline is 10 days.

Moreover, if we look at Article 234, initially a time of two months is given — it will remain in force for two months. And if the federal government thinks that the situation is still not normal, then before those two months end, it can get a resolution passed by Parliament and extend it for another two months, and ultimately it will remain for up to six months. This is in Article 234.

But if Article 232 has been invoked, then there is no timeframe in it, so you will read it alongside Article 235, and in Article 235 it is stated that when conditions become normal, and the federal government or the President of Pakistan consider that conditions are now normal, then they can lift the emergency.

The powers of the provincial government have ended, and the powers of the Chief Minister have also ended.

Previously, if a Chief Secretary had to be appointed — although it is appointed by the federal government, it is done in consultation with the Chief Minister — the first order made after the enforcement of the emergency was the transfer of the Chief Secretary and posting a new Chief Secretary from the federation, Dr Fakhar Alam.

So there is no endorsement by the Chief Minister anywhere. From this, you can gauge that the Chief Minister has no power. Yes, if the Assembly passes any such law, then Parliament has the power to undo it, and both houses of Parliament — the Senate and the National Assembly — can abolish it because it is written in these very articles, meaning in Chapter 10, that if the provincial government passes any conflicting law, the overriding effect will be held by the federal Majlis-e-Shoora.

And just as you see, recently the PTI government made an amendment to the Police Act, so now that amendment — although it is within the competence of the provincial assembly and the date has passed — the federal Parliament, meaning the Majlis-e-Shoora, can undo it, and the overriding effect will prevail with the federal parliament, the Majlis-e-Shoora, the National Assembly, and the Senate, and their legislation will prevail over the provincial assembly.

However, the Assembly has not been dissolved; there is no order to dissolve the Assembly, and the Assembly exists in its own capacity. And if, suppose, a situation arises that after two months or four months the emergency is lifted, then what will happen? Will a new Chief Minister come or a new cabinet come? Absolutely not.

The same Chief Minister who was there before the enforcement of the emergency, and the same cabinet, will take over. So they are held in abeyance, meaning they exist as they are, but they are powerless and have no authority. The Assembly exists, but the Assembly cannot make any legislation that is in conflict with the federal government.

‘Complete, decisive end to terrorism’

— Muhammad Ali, security analyst

At this time there are two fundamental reasons for this, [the imposition of governor’s rule and emergency], due to which our Head of State — who is also Pakistan’s constitutional Commander-in-Chief and Head of the Province — has the responsibility to carefully and promptly review whether, if a single unit of a province, its resources, energies, and mandate are not only failing to be used for the safety and eradication of terrorism for the people of its province — which is also a criminal negligence — but on the other hand, all provincial resources are being used to destabilise other provinces and the federation, then definitely no responsible state and its leadership can permit this.

So I commend the President’s prompt and timely action, and I believe that this is a very important responsibility fulfilled for the nation’s strength and security, and the summary and proposal of the federal cabinet have been acted upon immediately.

So, I believe that one more thing that is very important to clarify is that giving this any political colour or finding political motives is not appropriate.

The biggest reason why this emergency has come into effect is, unfortunately, the criminal negligence of the KP provincial government in failing to take timely and prompt steps to protect its people and citizens from the threat of terrorism.

I want to share some facts with you: there is a police force of approximately 125,000 in the KP province, out of which 17,000 personnel are deployed on protocol duties. Whereas, to enhance the capability of the Counter-Terrorism Department, the Federation provided them with funds of approximately Rs800 crore at various times.

But the total strength of the Counter-Terrorism Department of KP is only 3,300 personnel, out of which independent personnel are only 25, while protocol duty personnel number 17,000.

So this is proof that, you feel it looks as though, unfortunately, the provincial government of KP completely lacked priority and interest in making its capability, personnel, and capacity effective in order to protect its public from terrorism and eliminate it, due to which—you could say—coercively, the President and the federal cabinet had to take this step in summary.

However, I hope that no attempt will be made to give it a political colour, but rather it will be considered a prompt and necessary step by the state and federal government, whose fundamental purpose is the protection of the lives, property, and honour of our millions of brothers and sisters in KP, and a complete and decisive end to terrorism.