Emergency powers and federalism: a constitutional analysis

Having seen on Sunday the 11th of October that the Cabinet assembled and passed a controversial act of imposing Governor’s Rule and Emergency on the province of KPK, removing the only government duly elected by the votes of the people. I will try to analyse under the Constitution of the Islamic Republic of Pakistan (1973) whether the Federal Government may lawfully impose a state of emergency in the Province of Khyber Pakhtunkhwa (KPK) in the present political and security environment.

My analysis will focus on Article 232, the 18th Constitutional Amendment, and the jurisprudential evolution of Pakistan’s federal structure. It concludes that the Federal Government cannot constitutionally impose emergency in KPK on the basis of internal disturbance without a resolution of the Provincial Assembly, and that the present circumstances do not meet the constitutional threshold for unilateral federal action.

The emergency powers represent the most intrusive instrument available to the Federation under Pakistan’s constitutional framework. Their invocation alters the balance of federalism, restricts fundamental rights, and centralizes authority in Islamabad. Historically, emergency proclamations have been used to justify federal intervention in provincial autonomy, often with profound political consequences.

I endeavour to write in the current climate marked by political contestation, allegations of administrative dysfunction, and security concerns seeking to answer the question as to whether the Federal Government lawfully imposed emergency in KPK. I shall try to answer this through a doctrinal, textual, and jurisprudential analysis.

Article 232(1) allows the President if he is satisfied that a grave emergency exists whereby the security of Pakistan, or any part thereof, is threatened by war, external aggression or internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency. But with two provisos; the first being that if there is an issue of internal disturbance, no such proclamation can be made unless the Provincial Assembly has passed a resolution in that behalf. The second being that if the President has acted on his own not on advice, the matter shall be placed before the parliament within 10 days.

From the above it is clear the constitution intended to strengthen provincial autonomy, removing the federal authority in the case of internal disturbance, embedding federalism as a basic feature of the Constitution.

Apparently, there is no clear threat of war, or external aggression. Probably, the federation thinks that the long march to approach the Capital amounts to internal disturbance and therefore believes that it amounts to a threat to the security of Pakistan. Thus, it is only war or external aggression that permits a unilateral federal action. Internal disturbance historically the most invoked ground now requires the provincial consent.

The Supreme Court has repeatedly emphasized that the 18th Amendment entrenched federalism as a structural principle of the Constitution. We cannot ignore the judgment of the case of District Bar Association Rawalpindi v. Federation (PLD 2015 SC 401) where the Court reaffirmed that constitutional amendments enhancing federalism must be respected. And even the Mehmood Khan Achakzai v. Federation (PLD 1997 SC 426) case, although pre 18th Amendment, this case recognized federalism as a foundational principle.

These cases collectively establish that any federal attempt to bypass provincial autonomy especially through emergency powers must be strictly scrutinized.

It is an important question that we ask in relation to the present crisis regarding the imposition of emergency in KPK: Is there war or external aggression? We search for answers and see that there is no publicly available evidence that suggests that KPK is presently under any foreign invasion, cross-border military attack, or a declared state of war.

Thus, the only plausible ground would be internal disturbance. And then we ask ourselves as to whether there is any internal disturbance beyond the power of the Provincial Government to control. Even if internal disturbance exists, the Constitution requires a resolution of the KPK Provincial Assembly, and given the current political composition of the Assembly, it is highly improbable that such a resolution would be passed.

Then the next question is: Can the Federal Government bypass the Provincial Assembly? The answer is a big ‘No’. The constitutional text is explicit and mandatory. The President shall not issue a proclamation without a provincial resolution. The phrase shall not is prohibitory and leaves no discretion. Thus, any attempt otherwise with a view to circumventing is ultra vires of Article 232, contrary to the 18th Amendment, in violation of the federal structure, and subject to immediate judicial challenge.

Now we come to the imposition of Governor’s Rule as some argue that Article 234 may be used instead of Article 232. Article 234 permits the Federal assumption of provincial functions only when the function of the province cannot be carried on in accordance with the Constitution.

However Article 234 is not an emergency provision, it cannot be used to circumvent Article 232, it requires demonstrable constitutional breakdown, not mere political disagreement, and it remains subject to judicial review under the Federation of Pakistan v. Sindh (PLD 1994 SC 738). Thus, Article 234 cannot be used as a backdoor to impose emergency powers.

The Supreme Court has repeatedly held that emergency proclamations are justiciable, where I would refer to the cases of Asma Jilani v. Government of Punjab (PLD 1972 SC 139); emergency powers cannot be used to justify unconstitutional actions; and the Syed Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC 869). The Court may examine the factual basis of emergency. Federalism and provincial autonomy are judicially enforceable. Thus, any emergency imposed without meeting Article 232 conditions would likely be struck down.

1. Under Article 232, the Federal Government cannot impose emergency in KPK on the basis of internal disturbance without a resolution of the Provincial Assembly on the basis of the first proviso.

2. It is the cabinet that advised the President to impose emergency, and it was not the President who acted on his own as provided by the second proviso to Article 232. Thus the Parliament cannot override the first proviso.

3. No present circumstances meet the threshold of war or external aggression that would allow unilateral federal action.

4. Any attempt to impose emergency without provincial consent would be unconstitutional, ultra vires, and vulnerable to judicial invalidation.

5. Article 234 cannot be used to bypass Article 232 safeguards.

6. The constitutional design after the 18th Amendment protects provincial autonomy and prevents politically- motivated federal intervention.

It is my considered legal view that, under the Constitution of Pakistan, the Federal Government cannot lawfully impose emergency on Khyber Pakhtunkhwa under the present circumstances. The attempt would be unconstitutional and liable to be struck down by the superior judiciary.

Copyright Business Recorder, 2026