Emergency provisions

Published December 25, 2022
The writer is president of the Pakistan Institute of Legislative Development And Transparency.
The writer is president of the Pakistan Institute of Legislative Development And Transparency.

WITH each passing day, the state of animosity between the PTI, along with the two provincial governments it controls, and the federal government, that is composed of a multiparty coalition, is getting more intense. Both parties are trying all weapons available in the constitutional armoury. Constitutional provisions are, at times, stretched to the limit — and even beyond — but when the courts adjudicate disputes, despite the disapproval of and grumbling by the losing party, the verdict is generally respected and enforced.

No-confidence resolutions have been tabled and, in the case of the National Assembly, passed too, culminating in the exit of prime minister Imran Khan. The Punjab chief minister has been asked by the governor to prove that he still commands a majority in the provincial assembly.

In the escalating confrontation, at least two senior leaders have alluded to the possibility of using the ultimate weapon of emergency provisions. The Punjab chief minister had referred to ‘financial emergency’ after his short trip to Rawalpindi recently and earlier Interior Minister Rana Sanaullah had hinted at moving a summary for ‘governor’s rule’ in Punjab when the PTI spokesperson Fawad Chaudhry had mentioned the possibility of arresting him in the province.

There is no doubt that emergency provisions are very much a part of the Constitution, but their use usually indicates a shattered polity and a part of the provisions dealing with ‘financial emergency’ may deliver a deathblow to an already fragile economy. These provisions, therefore, better be left unused. Since provincial governors generally assume executive power of a province during an emergency, it is also referred to as ‘governor’s rule’.

There is no doubt that emergency provisions are a part of the Constitution, but their use indicates a shattered polity.

Part 10 of the Constitution covers emergency provisions and comprises six articles — Article 232 to Article 237. Three of these articles are of prime importance.

It is usually a province which bears the brunt of an emergency proclamation. This is why these provisions have assumed importance during this time of confrontation between the federal government and the Punjab provincial government.

Article 232 deals with the emergency, which is pronounced in two distinct situations. One, war or external aggression and, two, internal disturbances beyond the power of a province to control. If an emergency is to be pronounced because of internal security conditions of a province, then the provincial assembly concerned is required to pass a resolution. The president can also proclaim an emergency, but in this case the proclamation would need to be placed before parliament, whose two Houses should approve it within 10 days.

During the emergency under this article, the provincial assembly can continue to work, but a law passed by parliament for the province will have precedence over provincial laws. The executive authority of the federal government extends to the province which will be exercised either by the president or the provincial governor. The powers of the courts will, however, remain unchanged during the emergency.

The proclamation of an emergency needs to be placed before a joint sitting of parliament within 30 days of the proclamation. Its validity is for two months, unless the joint sitting approves an extension through a resolution. If the joint sitting disapproves the proclamation, it will cease to be in force.

An important aspect of the emergency under this article is that parliament, during the emergency, may extend the term of the National Assembly for a period of up to one year, but this extra term cannot extend beyond six months after the proclamation ceases to be in force.

Article 233 explains that the president will have the power to suspend certain fundamental rights under the emergency proclamation.

Article 234 deals with the power to impose emergency in case of failure of the constitutional machinery in a province. This probably is the article which provinces should be most concerned about. The imposition of this emergency may happen after the president receives a report from the provincial governor and the president is satisfied that a situation has arisen in which the provincial government cannot carry out its duties out in accordance with the Constitution. In case the two Houses of parliament pass a resolution separately demanding that such an emergency be imposed, the president is bound to proclaim the emergency. The powers of the courts, however, will remain intact even during the emergency.

A proclamation issued under Article 234 has to be laid before a joint sitting of parliament and is valid only for two months, unless the joint sitting extends the validity for a further period of two months. The maximum validity of such a proclamation is six months.

The proclamation under this article may declare that the powers of the provincial assembly are exercisable by or under the authority of parliament. The joint sitting of parliament can also confer power on the president to make laws for the provincial assembly. The president, when parliament is not in session, may also authorise expenditure from the provincial consolidated fund to be later sanctioned by a joint sitting of parliament.

Article 235 deals with proclamation of a financial emergency by the president if he is satisfied after consultation with the governor or governors that a situation has arisen whereby economic life, financial stability or the credit of Pakistan or any part of it is threatened. While such proclamation of emergency is in force, the executive authority of the federation extends to giving directions to any province to observe such principles of financial propriety as may be specified in the directions. These directions may include reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a province or the federation. This proclamation is also required to be laid before a joint sitting of parliament and may be extended up to six months as in the case of proclamation under Article 234.

The writer is president of the Pakistan Institute of Legislative Development And Transparency.
president@pildat.org
Twitter: @ABMPildat

Published in Dawn, December 25th, 2022

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