Constitution & proclamation of emergency or governor’s rule? | By Brig Muhammad Asif (R)

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Constitution & proclamation of emergency or governor’s rule?

LIKE constitutions of many other countries in the world, the Federal Government in Pakistan is also legally competent and empowered to issue proclamation of emergency in different situations under the Constitution in case the country faces a threat of war or external aggression, or internal disturbances beyond the control of a Provincial Government.

Article 232, 233, 234, 235, 236 and 237 of the Constitution of Pakistan precisely deal with the situation and states the process of proclamation of emergency and its legal consequences.

However, the authority to impose Governor’s rule in a province on the advice of Federal Government has not only been drastically restricted and curtailed through the 18th constitutional amendment but simultaneously Parliament and the concerned Provincial Assembly have also been given Vast powers to constrain such imposition and the process of proclamation of emergency.

· As per Article 232 of the Constitution, If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a provincial government to control, he can issue a Proclamation of emergency.

However, for imposition of emergency due to internal disturbances beyond the powers of a provincial government to control, a resolution from the Provincial Assembly of that province shall be required and mandatory before such action of the President.

And if the President acts on his own without any reference of provincial government, such Proclamation of emergency shall be placed before both Houses of Parliament for the approval by each House within ten days.

· Article 234 of the Constitution deals with the power to issue Proclamation in case of failure of constitutional machinery in a province, and if the President, on receipt of a report from the Governor of a Province is satisfied that a situation has arisen in which the government of the province cannot be carried on in accordance with the provisions of the Constitution, the President may, or if a resolution in this behalf is passed by each House separately shall, by Proclamation, assume to himself, or direct the Governor of the province to assume on behalf of the President, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, anybody or authority in the Province, other than the Provincial Assembly.

· The Proclamation issued under Article 234 of the Constitution shall be laid before a joint sitting, and the Proclamation shall cease to be in force at the of two months expiring, unless before the expiring of that period it would be approved by resolution of the joint sitting and the resolution could be extended for a further period not exceeding two months at a time; but no such Proclamation of emergency shall in any case remain in force for more than six months.

Article 235 of the Constitution deals with Proclamation in case of financial emergency, and states that if the President is satisfied that a situation has arisen whereby the economic life, financial stability or credit of Pakistan, or any part thereof, is threatened, he may, after consultation with the Governors of the provinces or, as the case may be, the Governor of the province concerned, by Proclamation would make a declaration to that effect, and, while such a Proclamation is in force, the executive authority of the Federation shall extend to the giving of directions to any province to observe such principles of financial propriety as may be specified in the directions, and to the giving of such other directions as the President may deem necessary in the interest of the economic life, financial stability or credit of Pakistan or any part thereof.

Article 236 of the Constitution states that a Proclamation issued under this Part can be varied or revoked by a subsequent Proclamation, and the validity of any Proclamation issued or Order made shall not be called in question in any court.

Article 237 also prescribes that nothing in the Constitution shall prevent Parliament from making any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan.

· While a Proclamation of emergency is in force, Parliament shall have power to make laws for a province, or any part thereof, with respect to any matter not enumerated in the Federal Legislative List.

While a proclamation is in force, the Federal Government during this time can suspend the enforcement of fundamental rights and can issue orders to the provincial governments and can also suspend the operation of constitutional provisions with regards to provincial bodies and matters and such orders must be approved by Parliament.

The Parliament can also legislate on provincial matters while the emergency is in force and may extend its life for up to a year.

It is also important that when a Proclamation of emergency is in force, Parliament can by law, extend the term of the National Assembly for a period not exceeding one year, and not extending in any situation beyond a period of six months after the proclamation of emergency has ceased to be in force.

It is also clearly mentioned in the Constitution that the Federal Government cannot hold the Constitution in abeyance nor would suspend the provisions of the Constitution related to the superior judiciary.

It is pertinent that in all situations relating to the Proclamation of emergency, the superior courts would have the powers of judicial review under the Constitution and to decide the validity of Proclamation of emergency, and their decision would be binding to all concerned under Article 189 of the Constitution.

—The writer is practicing Advocate Supreme Court of Pakistan and has previously served on many important quasi-judicial positions including Chairman, Customs, Excise & Sales Tax.

 

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