“Amid the clash of arms, the laws are not silent”. Lord Atkin
Recently, an emergency was imposed in the province of Khyber Pakhtunkhwa (KPK), Pakistan, under Articles 232(1) and 234(1) of the Constitution of the Islamic Republic of Pakistan, 1973, reportedly on the grounds of terrorism and a breakdown of the constitutional machinery. The political instability prevailing in the province appears to have formed part of the broader context in which the alleged resurgence of terrorism and the imposition of the emergency must be examined. The relevant part of Article 232(1) provides that : If the president 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.
In the first provisio of the article 232 the word if the president satisfies the President’s satisfaction is subjective in the sense that he must genuinely believe that a grave emergency exists; however, it must also have an objective and constitutionally sufficient basis in relevant facts and material. Accordingly, the exercise of this power must satisfy both the requirement of genuine executive satisfaction and the applicable constitutional conditions. The existence of political instability or terrorist activity, by itself, does not automatically establish that the constitutional threshold for declaring an emergency has been met.
Importantly the second proviso of the clause sub (1) of Article 232 states that in case of internal disturbance the president will take resolution of the provincial assembly here the emergency was imposed due to terrorism and break down of consitutional machinery but not of specifically internal disturbance here the very question of law raises that whether the terrorism and constitutional machinery are interlinked with the internal disturbance. Terrorism may create an internal disturbance, and an internal disturbance may contribute to a breakdown of constitutional machinery. However, each is a separate legal question requiring its own constitutional justification. A provincial government may face serious terrorism while continuing to function constitutionally; conversely, constitutional machinery may break down for reasons unrelated to terrorism. The distinction is supported by the separate constitutional tests under Articles 232 and 234 and the judicial treatment of Article 234 in Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738).
The key question is not merely whether terrorism exists, but whether the facts satisfy Article 232(1) and whether the separate requirements of Article 234(1) are established. The use of both provisions does not, by itself, prove that either constitutional threshold has been met. A significant constitutional concern arises from the difference in the duration of emergency powers under Articles 232 and 234 of the Constitution of Pakistan, 1973. While Article 234(3) expressly limits a proclamation concerning the failure of constitutional machinery in a province to six months, subject to the special provision in clause (4), Article 232 does not prescribe a comparable overall maximum duration for a proclamation of emergency. Although Article 232 requires parliamentary approval within the constitutionally prescribed period, the absence of an express overall time limit raises questions concerning prolonged federal intervention in provincial affairs. In the context of Khyber Pakhtunkhwa, this distinction warrants close scrutiny, particularly if emergency powers are used to assume provincial executive functions in circumstances that also resemble Governor’s Rule under Article 234. The constitutional question is whether Articles 232 and 234 are being exercised for their distinct constitutional purposes, or whether Article 232 is being invoked to circumvent the express six-month limit prescribed by Article 234. This question cannot be resolved merely by the simultaneous invocation of both provisions.
The central issue is not whether the Federation possesses emergency powers, but whether their exercise complies with the Constitution and respects provincial autonomy and representative government.
Articles 232 and 234 of the Constitution serve different purposes and prescribe different conditions for declaring an emergency and imposing Governor’s Rule. These provisions must be applied strictly in accordance with their constitutional requirements. The case of General Pervez Musharraf illustrates that emergency powers cannot be used to justify unconstitutional actions. He was sentenced to death in 2019 for high treason arising from his unconstitutional actions in 2007, including holding the Constitution in abeyance and issuing the Provisional Constitution Order. The key principle is that emergency powers must be exercised within the limits prescribed by the Constitution, not outside them.
The imposition of emergency in Khyber Pakhtunkhwa raises serious constitutional questions concerning provincial autonomy, constitutional safeguards and the objectives of the 25th Amendment to the Constitution of Pakistan, 1973. By merging the former Federally Administered Tribal Areas into Khyber Pakhtunkhwa, the 25th Amendment incorporated the region into the province's constitutional framework. Although Articles 232 and 234 confer exceptional powers upon the Federation, those powers must be exercised strictly within their respective constitutional limits. In particular, the requirement of a Provincial Assembly resolution under Article 232 (1), where the emergency is based on internal disturbance beyond the province's capacity to control, cannot be circumvented merely by describing the situation in different terms. Similarly, Article 234 requires a constitutionally established inability to govern the province in accordance with the Constitution. If these provisions have been invoked without satisfying their respective requirements, or have been used as a pretext to displace an elected provincial government, the action may be challenged as unconstitutional and contrary to the principles of provincial autonomy and representative government. The central issue is not whether the Federation possesses emergency powers, but whether their exercise in the present circumstances complies with the Constitution and respects the constitutional settlement embodied in the 25th Amendment.
In the present circumstances, the political question doctrine must not be interpreted as conferring unrestricted immunity upon the Federal Government in the exercise of emergency powers. Although matters of national security and executive policy may require judicial restraint, the constitutional validity of a proclamation under Articles 232 and 234 remains a distinct legal question where the relevant constitutional requirements are justiciable. In Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738) and Watan Party v. Federation of Pakistan (PLD 2012 SC 292), the Supreme Court recognised that the political implications of a dispute do not, by themselves, prevent judicial review of governmental action alleged to violate the Constitution. Accordingly, the courts need not substitute their judgment for that of the executive on operational security matters; they must, however, remain capable of determining whether constitutional authority has been exceeded, mandatory procedural safeguards have been observed, and the powers conferred by Articles 232 and 234 have been exercised for their constitutionally prescribed purposes. In the context of Khyber Pakhtunkhwa, the political question doctrine should therefore be considered alongside, rather than as a substitute for, the constitutional limits imposed by the 25th Amendment and the relevant emergency provisions. The decisive distinction is between judicial interference in executive policy and judicial enforcement of the Constitution.
Ultimately, the fundamental question is not whether the State may respond to terrorism and instability, but whether it has exercised its extraordinary constitutional powers in a lawful, proportionate, and constitutionally justifiable manner. Ultimately, the strength of a constitutional democracy lies not only in its capacity to confront exceptional circumstances, but also in its unwavering commitment to the rule of law when confronted with them.