The ghost of our colonial past follows us as an inseparable shadow which we have been unable to ostracise from our constitutional topography. A long walk from the partition has permitted Pakistan’s courts in many cases to assert the dominance of our distinct values to be delineated from the British values or Indian values which define our constitutional democracy. Yet, in some areas our constitutionalism normatively and non-semantically suffers from colonial amnesia with clear enunciation in the constitution of Islamic Republic of Pakistan 1973.

Part X, Article 232 to Article 236 of 1973 constitution is a candid reflection of our colonial past and of our amnesia of that past which reflected the values of the British crown. In order to retain effective control over their subjects, it was found expedient by the colonialist to introduce emergency provisions designed to confer upon the British executive unfettered power to administer by way of force with minimal oversight from the Indian legislature. Under the Government of India Act 1935, emergency could be imposed on the Indian soil under the pretext of “failure of constitutional machinery” and “War or Internal disturbance”. In fact, such was the omnipotence of the British Governor General, s.12(1) of the 1935 Act laid that:

“(a) the prevention of any great menace to peace or tranquillity or India; [and]

(b) safeguarding of the financial stability and credit of the Federal government”

The only cracked veneer of self-proclaimed accountability, designed perhaps only for self-appeasement of the colonialist for wearing the cloak of diligent accountability of the Governor General for proclaiming emergency vested with the British Parliament of Westminster which was devoid of Indian representation and lacked the insight or the motivation to question the actions of the Governor General. Thus the foundation of emergence of a strong executive control to impose emergency is predicated on boots on the ground type control through a show force, even if necessary. Clearly incompatible with a federation like Pakistan held together by political compromises rather than brute force, yet we inherited it.

Following the historic 18th Amendment, there remains a blot of vast governmental power bequeathed to us. Article 232(1), 234(1) and 235(1) makes the imposition emergency on “account of war or internal disturbance”, “failure of the constitutional machinery in a province” and “financial emergency” subject to the sheer discretion of the President with the insertion of the words: “If the President is satisfied”

Although the President does not represent the government per se, and is the head of the state according to Article 41(1). Nevertheless, the president more often than not enjoys strong ties with the Federal government as he/she is elected by the Parliament, essentially with the votes from the treasury. Owing to this, there is no cavil to the assumption that his political discretion is exercised in conformity with the federal government’s policy. Much akin to the discretionary powers of the Governor General, Pakistan’s constitution allows the overwhelming discretion of the president to suspend the operation of the invaluable fundamental rights of the citizens under Article 233. As our political and legal history is laden with times of political turmoil and the imposition of strict emergency, allowing the president wide discretionary powers provides an impetus for the abuse of power.

Moreover, as the Objective’s resolution makes it clear that Pakistan is founded upon the notion of federalism whereby, the Federal as well as the provinces enjoy sovereignty, any attempt to circumscribe the provincial sovereignty by the federal would effectively undermine the spirt of federalism. The Supreme Court reiterated in Government of Sindh v Dr Nadeem Rizvi 2019 SCMR 556 that “in order to maintain and preserve the federal nature of the constitution, effort should be made to interpret the constitutional provisions so as to preserve the provincial autonomy rather than dilute the same”. The replication of emergency provisions from the colonial times in the shape of Article 234(1) is a testament to the dilution of the provincial autonomy. The latter indirectly allows the sheer discretion of the president to proclaim emergency upon the report from the governor of the province. The governor being the appointee of the president on the advice of the Prime Minister under Article 101(1) is effectively an agent of the federal in the provinces who more often than not enjoys a cordial relation with the federal government.

Furthermore, as often it is the case, where there is a different provincial and a federal government, the federal government will always possess the strength in the Parliament to endorse the presidential proclamation of emergency under the pretext of “failure of constitutional machinery in a province” for which the constitution does not require the assent from the provincial government or the provincial assembly. With vast discretionary powers bestowed upon the federal executive to impose emergency, provinces in the federation run a greater risk of being politically coerced by a belligerent federal government, thwarting the provincial autonomy guaranteed by the constitution.

No amount of intensity of belligerence of any federal government could impinge upon the imbued structure of federalism if the strong grip of accountability clinches it. Article 236(2) provides a blanket immunity to the president for proclaiming emergency or, any law passed regardless of its absurdities or infirmities, could be challenged in the court. In Niaz Ahmed V Sindh PLD 1977 Kar 604, five judges held that, courts cannot question the proclamation of emergency or any laws passed during that time. Subsequently, the Supreme Court in the case of Lt Gen (R) Salahuddian Tirmizi v Election Commission of Pakistan PLD 2008 SC 735 acknowledged that, although the jurisdiction of the courts is ousted by the Article 236(2) nevertheless, courts have the inherent power of judicial review to review the “circumstances surrounding the proclamation”. With Article 236(2) ousting courts power of judicial review, there will never be legal certainty for future courts pertaining to their power to take cognizance of the Proclamation of emergency until the Parliament shuns this colonial ghost that haunts our federal structure by expediently amending Article 232,233, 234,235 and 236.