PTI may challenge emergency in court

Experts differ on scope of judicial review as lawyers condemn move to remove elected K-P government The PTI may challenge the imposition of an emergency and governor's rule in Khyber-Pakhtunkhwa (K-P) before the Peshawar High Court (PHC), with legal experts divided over the constitutional validity of the measures and the scope of judicial review. Former law officers and lawyers believe the party can question the federal government's decision on grounds of mala fide and non-fulfilment of constitutional requirements. However, other legal experts argue that the Constitution provides a significant safeguard against judicial challenges to presidential proclamations issued under Articles 232 and 234. The composition of the bench hearing any potential petition could be crucial. If the PHC decides the matter, an appeal against its ruling could be filed before the Federal Constitutional Court (FCC), whose judges are appointed by the executive. The FCC can also summon records from any court under Article 175E(5) of the Constitution where a case involves a substantial question of law regarding constitutional interpretation. A former attorney general said the PTI could challenge the measures on the ground of mala fide, arguing that the constitutional requirements for such extraordinary action had not been fulfilled. He questioned whether the federal government had formally corresponded with the K-P government over any alleged lack of cooperation in countering terrorism before taking the decision. "The issue was first raised at the last meeting between the PML-N, the PPP and the PTI. This was not a meeting between the federal and provincial governments," he said. The former law officer said the court should direct the federal government to produce the record and material on which the decision was based. He noted that Interior Minister Mohsin Naqvi had reportedly held several meetings with K-P chief minister Sohail Afridi. He also referred to statements attributed to the prime minister and federal ministers suggesting that the measures would not be taken if the PTI called off its long march. According to him, these circumstances raised questions about whether the action was prompted by the planned march rather than any failure by the provincial government to cooperate on counterterrorism. The former law officer also questioned the speed with which the federal cabinet considered the matter, saying it was placed before the cabinet on a Sunday and the meeting reportedly lasted barely an hour. "How did the cabinet consider the material in such a short span before approving this extreme action? Why were Articles 232 and 234 invoked simultaneously when the requirements of the two provisions are distinct?" he asked. Advocate Waqas Ahmed said both proclamations could be challenged if the constitutional conditions stipulated under Articles 232 and 234 had not been met. "Article 232 requires a constitutionally recognised emergency, while Article 234 requires a failure of constitutional machinery in the province. Mere law-and-order problems or political instability are not sufficient, by themselves, to justify these extraordinary measures," he said. He added that their validity would have to be assessed against the constitutional conditions, the material relied upon and compliance with the prescribed procedure. Advocate Abuzar Salman Niazi cited the Supreme Court judgment in Sardar Farooq Ahmed Khan Leghari v Federation of Pakistan, arguing that a proclamation of emergency was not necessarily immune from judicial review merely because the Constitution contained an ouster clause. "The court may examine its validity where the exercise of power is without jurisdiction, coram non judice or mala fide. The judgment also recognised that constitutional powers must satisfy the prescribed conditions for their exercise," he said. However, advocate Hafiz Ahsaan Ahmed Khokhar offered a contrasting interpretation, arguing that the presidential proclamations imposing an emergency under Article 232 and governor's rule under Article 234 must be examined alongside Articles 48(2), 148, 149 and 236(1) and (2). He said the combined operation of Articles 48(2) and 236(2) provided a strong constitutional defence against proceedings seeking to invalidate the proclamations. Article 48(2), he explained, protects the validity of presidential action taken in the exercise of discretion specifically conferred by the Constitution, while Article 236(2) expressly provides that the validity of a proclamation issued or order made under Part X of the Constitution shall not be called into question in any court. "Since Articles 232 and 234 fall within Part X, this express constitutional prohibition provides a formidable preliminary objection to proceedings seeking to invalidate the proclamations themselves, including proceedings before the Federal Constitutional Court," Khokhar said. He added that Article 236(1) provided for the revocation or variation of a proclamation through a subsequent proclamation, while parliamentary approval and oversight had to be exercised in accordance with the applicable constitutional requirements and time limits. Where these procedures were followed, he said, parliamentary scrutiny could reinforce the constitutional basis for the measures and support judicial restraint in matters involving executive assessments of national security and constitutional governance. "Accordingly, a challenge directed solely at the validity of the proclamations faces a substantial constitutional bar under Article 236(2), reinforced, where applicable, by Article 48(2)," he added. Meanwhile, the response from the legal fraternity has remained divided. The Khyber-Pakhtunkhwa Bar Council has yet to issue a public statement on the development. A lawyer said the council's anti-PTI group held a majority, making a call for a strike in the province's courts unlikely. In contrast, eight members of the Pakistan Bar Council belonging to the Professional Group have condemned the imposition of governor's rule and an emergency in K-P, as well as the removal of the elected provincial government led by chief minister Sohail Afridi. In a joint statement, the members described the action as illegal and alleged that it had been taken by a government and parliament already facing allegations of massive rigging in the general elections. They said the imposition of governor's rule and an emergency, along with the formation of an advisory council, was marked by mala fide and illegality. The statement alleged that the political system had undermined the rule of law and constitutional supremacy, concentrating power in an authoritarian state while weakening elected civilian governance. The lawyers questioned whether the prevailing security situation justified an emergency, pointing out that terrorism had affected Pakistan for four decades despite the sacrifices of civilians and armed forces personnel. They argued that Article 234 permitted governor's rule only when a provincial government could not be carried on in accordance with the Constitution. "The provincial government and the Provincial Assembly were both discharging their functions in accordance with the Constitution," the statement said. Questioning the argument that the provincial government had failed to cooperate in the fight against terrorism, the lawyers referred to the security situation in Balochistan, where, they said, a PPP-led government was reportedly working closely with the military despite continuing terrorist attacks. The PBC members also linked the rise in terrorism and declining public confidence in the federation to what they described as democratic deficits, economic mismanagement, violations of fundamental and human rights, restrictions on access to justice following the 26th and 27th constitutional amendments, and corruption. While expressing support for the armed forces in their fight against internal and external aggression, they called upon the president to withdraw the proclamations, restore the elected K-P government and respect provincial autonomy.