ISLAMABAD, Aug 8: Constitutional experts say that controversy about motives behind the imposition of emergency notwithstanding, the president has been given powers in the Constitution to promulgate such an order to suspend fundamental rights.

The Constitution also states that he may even get an extension in the emergency rule through a joint sitting of the parliament within 30 days of the issuance of the proclamation, and may even get an extension in the tenure of the National Assembly for another year.

It’s Article 232 of the Constitution that empowers the president to exercise such powers on “account of war, internal disturbance etc”. It reads: “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 may issue a proclamation of emergency.”

Such a proclamation will also curtail the powers of the provincial governments as Article 232-2(b) states: “The executive authority of the federation shall extend to the giving of direction to a province as to the manner in which the executive authority of the province is to be exercised.” And 2(c) of the same article says, “The federal government may by order assume to itself, or direct the governor of a province to assume on behalf of the federal government, all or any of the functions of the government of the province, and all or any of the powers vested in, or exercisable, anybody or authority in the province other than the provincial assembly, and make such incidental and consequential provisions as appear to the federal government to be necessary or desirable for giving effect to the objects of the proclamation, including provisions for suspending, in whole or in part, the operation of any provisions of the Constitution relating to anybody or authority in the province”.

Other subsequent clauses also deal with various powers that the federal government may directly assume. However, it also states that “nothing in this article shall restrict the power of a provincial assembly to make any law which under the constitution it has powers to make … .”

Constitutional experts also point to Clause 6 of Article 232, which allows an extension in the term of the National Assembly. It reads: “While a proclamation of emergency is in force, Majlise Shoora (Parliament) may by law extend the term of the National Assembly for a period not exceeding one year and not extending in any case beyond a period of six months after the proclamation has ceased to be in force.”

Political observers say this is exactly what the PML president Chaudhry Shujaat Hussain had been hinting at for the last many months. And in case of emergency rule, it is being said, the president may clearly take advantage of this provision to extend the tenure of the present National Assembly, where his supporters have a clear majority.

However, there is no clause in this article which allows the imposition of emergency for an indefinite period. Clause 7 says such a proclamation “shall be laid before a joint sitting which shall be summoned by the president to meet within 30 days of the proclamation being issued.” And it goes on to elaborate in sub-clause 7(a) that it “shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the joint sitting”.

These constitutional experts point out that the proclamation may empower the president to suspend almost all those articles of the Constitution that deal with fundamental rights, including the right of to assemble, to carry out political activities, right of free speech, and even freedom of expression. All these issues are dealt in Article 232. Its clause 1 states: “Nothing contained in articles 15, 16, 17, 18, 19, and 24 shall, while a proclamation of emergency is in force, restrict the power of the state as defined in article 7 to make any law or to take any executive action which it would, but for the provisions in the said articles, be competent to make or to take, but any law so made shall, to the extent of in-competency, cease to have effect, and shall be deemed to have been repealed, at the time when the proclamation is revoked or has ceased to be in force.”

And the subsequent clause explains the situation of the legal challenges in such a situation. It reads: “While a proclamation is in force, the president may, by order, declare that the right to move any court for the enforcement of such of the fundamental rights conferred by chapter (1) of part II as may be specified in the order, and any proceeding in any court which is for the enforcement, or involves the determination of any question as to the infringement, of any of the rights so specified, shall remain suspended for the period during which the proclamation is in force, and any such order may be made in respect of whole or any part of Pakistan.”

In case such a situation arises, the articles that will directly affect fundamental rights are: Article 15, which deals with ‘Freedom of Movement, etc., Article 16, which deals with ‘Freedom of Assembly, including peaceful gathering for political purposes’, Article 17, which deals with ‘Freedom of Association’, and Article 19 that directly deals with ‘Protection of Speech’. Experts say if the presidential proclamation includes suspension of Article 19, then it could lead to drastic curtailment of freedom of press. However, some of these constitutional experts say in such a situation all eyes would be set on the superior judiciary, because even after the proclamation there is a clear possibility of a legal challenge in the Supreme Court. Given the way the Supreme Court has remained involved in judicial activism, taking up all those cases of political nature and matters of fundamental rights, it is not difficult to assume that this issue will also be given serious consideration. In other words, experts say, the proclamation of emergency may only bring temporary reprieve to the president before the matter goes to the Supreme Court.