EMERGENCY
As detailed earlier, the federal powers of emergency under Article 232 impose extensive limits on the powers of the provincial government. In light of these, the question of whether or not provincial assemblies could be barred from meeting during the promulgation of a national emergency came up to be determined in 1999.
The Supreme Court held that the federal government can assume the powers vested in or exercisable by any body or authority in the province other than the Assembly and that an order barring the Sindh Assembly from meeting was held was contrary to the constitutional rights of Assembly members.[422]In the same Emergency chapter of the Constitution, there is a clearer delegation of powers to the President to dissolve provincial assemblies: under Article 234, the President can declare a provincial Assembly non-functional and revert the province in question to Governor’s rule for a period of two months. The condition for invocation of these powers is that the President be ‘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’ to direct the Governor to assume powers on the President’s behalf. The Governor thereby assumes power over ‘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 President’s powers are themselves activated by the advice given by the Governor.
It was after the return of electoral and parliamentary democracy that the exact nature of the executive’s powers to tread into provincial parliamentary affairs would be tested through judicial review Beginning in 1990 and carrying on through the decade, a number of instances arose wherein provincial governments were formed by parties that were the official opposition within the central legislature.
As a consequence, significant amounts of meddling, exacerbated by the Governor’s role as central appointee, worked to destabilise provincial governments. One illustrative and important instance involves the coalition government under the Pakistan Muslim League of Sabir Shah in the NWFP. In that case,[423] the government at the centre was Benazir Bhutto’s and the President and Governor were both also members of her party. A presidential proclamation was issued, declaring Governor’s rule, once advice had been tendered suggesting that a constitutional deadlock or impasse had been reached in the province. The details of the alleged impasse included inter-party defections and the frustration by the Speaker of the Assembly of a call for a vote of confidence as well as the near incitement to violence of student groups aligned to the major parties in a way that threatened the working of the provincial government. Against this scenario the court held that the President’s proclamation was issued for sound reasons and was within the ambit of what might be termed a constitutional emergency.In a later case,[424] the conditions of a constitutional emergency were strictly parsed and delineated and that a number of ministers within the ruling coalition had resigned from their seats was held not to be sufficient to prove a constitutional emergency. Further, the court more explicitly dilated upon the implications for the federal principle. Reflecting upon the peculiarity of the federal powers of intervention, which in the case of Pakistan and also India are available beyond conditions simply of external aggression or civil unrest, but also extend to constitutional emergencies, the court cautioned that these powers should be used sparingly.
After the Eighteenth Amendment of 2010 the executive power to suspend Assemblies is mediated by the following preconditions: the Governor of a province, upon receipt of an act of Parliament signaling its inability to exercise effective control may request the President to intervene.
Alternately, both houses of Parliament must separately pass a resolution demanding the imposition of such an emergency. This latter condition thus ensures that the Senate, given its representation of the federating units, has some influence on opposing a resolution that would be held to be against the interests of the lesser provinces. The enforcement mechanisms at the disposal of the executive during Emergency Rule remain entirely intact and include the suspension of fundamental rights.A range of situations have arisen in recent times whereby a timebound Governor’s rule has been operationalised under Article 234. In 2009, citing the ‘unprecedented and unique constitutional void’ left in the Province of Punjab as the sitting Chief Minister was retroactively disqualified from holding the post of MPA, President Zardari declared Governor’s rule there.[425] In 2013, after a spate of killings of the minority Hazara community by sectarian anti-Shia militias, the ‘centre’ caved in to popular demands that the provincial Assembly be suspended and Governor’s rule be established.[426] The popular pressure arose probably in anticipation that direct executive rule would be less encumbered in seeking out and bringing to account the perpetrators of such violence. In actuality, no charges were laid.
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