PAKISTAN has had three constitutions. Two given to it by its people in 1956 and 1973. One promulgated by a field marshal in 1962. The 1973 Constitution was adopted by the people through their representatives in the constituent assembly. Article 1 states that Pakistan shall be a federal republic. Neither the term “federal” nor “republic” is expressly defined. The Objectives Resolution provides guidance.
The power and authority of the state in our republic is to be exercised through the chosen representatives of the people. A republic is distinct from rule by one man. In a republic, rulers are not immune from accountability. They can be removed and replaced if they fail to perform.
The various territories that are part of Pakistan or that accede to Pakistan form a federation. These territories are autonomous and their boundaries and powers and authority are prescribed. The Objectives Resolution guarantees that the integrity of the territories shall be safeguarded.
A federal state is brought into being by the territories that comprise it through a written instrument. This instrument defines the authority of the federation and these territories. The federation presupposes and is premised on the existence of these territories. Dismantling the territories would undermine the foundational integrity of the federation and the compact reflected in the 1973 Constitution.
A constitution can be amended. The limits of a province or territory can be changed with its consent. Such an amendment may alter limits or provincial boundaries. It does not contemplate partition or subdivision of existing provinces or existing territories. Actions that compromise provincial integrity inevitably lead to questions regarding the benefits of being part of the federation. These questions have been resolved by the various territories and reflected in the 1973 Constitution. It would not be wise to reopen them.
Emergency powers cannot be used to deprive any citizen of the right to a fair trial.
Provincial integrity is not incompatible with devolution of power and effective local government. The Principles of Policy of the Constitution require the state to encourage local government institutions. Each province is constitutionally required to establish a local government system and to devolve power.
The president is the head of state and represents the unity of the republic. The president as a symbol of a united federation must be satisfied prior to provincial autonomy being assailed. This can only be done in exceptional circumstances. The emergency provisions enable federal rule over a province if the president is satisfied that certain conditions exist.
The president does not have authority to impose an emergency whenever he deems fit. The emergency provisions are not like the erstwhile Article 58(2)(b). The president was empowered under this Article to dissolve an elected government in his discretion. The emergency powers are not expressed to be discretionary powers of the president.
Could the president have refused to sign the recent emergency proclamation notwithstanding the advice of the federal government? He could certainly have asked the government to look at matters again. Did he have discretion to refuse if after reconsideration the government insisted?
The term “discretion” is not used in the relevant Articles of the Constitution. The conventional legal view is that absent a power being expressed as discretionary, the president is bound to act on the advice of the government. In the case of the emergency provisions the president is required to be “satisfied”. This suggests a mental state of an individual office holder.
It could be argued that a mental state cannot be imposed through governmental advice. Regardless, in the present emergency, this appears to be a moot point since the president did not even ask the government to reconsider its advice. We do not know the nature of the material made available to the president to satisfy him beyond what is contained in the proclamation. Its contents are in substance assertions and non-speaking. They do not provide cogent reasons.
If the stipulated conditions for an emergency do not exist, the proclamation is unlawful. It is incorrect to state that because emergency powers exist in the Constitution, the exercise thereof is constitutional. The existence of a power and its lawful exercise are two distinct matters.
Emergency powers cannot be used to deprive any citizen of Pakistan of the right to a fair trial. The emergency provisions enable suspension of operation of a provision of the Constitution only relating to a body or authority in the province. They do not permit the suspension of Article 10-A of the Constitution which provides for a fair trial and due process. The federal government’s order pursuant to the proclamation states that Article 175(3) shall not apply to the designated districts. This Article provides for separation of the judiciary from the executive. The constitutional framework does not contemplate such suspension.
The emergency provisions also do not authorise the subdivision of a province by creating a separate governance structure for certain designated parts absent provincial legislative consent. Where certain federally administered areas have been made part of a province through a constitutional amendment (as is the case with Fata), the impact of this amendment cannot lawfully be undone through a proclamation of emergency which is an executive action.
Depriving people of a territory of rule by their representatives is undemocratic and diminishes the federation. When imposed on an unwilling provincial government, it pits the centre against one of its parts and weakens the whole. Normal constitutional functioning should be restored as soon as possible.
The real question that needs consideration is whether currently Pakistan is truly operating as a federal republic. That is what is contemplated by the first Article of our Constitution. If the compact that binds the territories that comprise our nation is broken, what credible vision can the rulers offer the people in these territories? The existential challenge the country faces is not from its enemies and those who wish us ill. It is from power being divorced from political authority and therefore accountability. That is the real emergency facing us. Until we confront this truth, the story of Pakistan will not change.
The writer is a lawyer.
Published in Dawn, October 28th, 2026
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