‘Sovereign is he who decides on the exception,’ wrote the notorious German thinker Carl Schmitt in 1922. Or, put simply, whoever gets to decide when the rules stop applying is the one actually in charge.
Gifted with a big brain and sharp turn of phrase, Mr Schmitt went on to become a noted critic of parliament, constitutionalism, and liberal democracy. For a time, the age was also his: in the ‘20s back then, much like the ‘20s now, such subjects had fallen out of fashion.
But as a much-quoted critique of Mr Schmitt went, ‘His preferred cure turned out to be infinitely worse than the disease.’
Why did this happen?
So too, the centre tells us, that the ministry of Sohail Afridi in Khyber Pakhtunkhwa is the disease, and emergency the cure.
As to what kind of disease, we can’t be sure. The centre claims militancy; terror bleeding back into the headlines. But if that is the main case to be made, everything that attaches to Sohail Afridi in Khyber Pakhtunkhwa also attaches to Sarfraz Bugti in Balochistan, a province nearly half the country’s landmass.
The unity regime is unhappy with such comparisons; apples and bowling balls, they say: Bugti’s ministers are cooperating with the centre, whereas Afridi’s are Taliban sympathisers. That, too, is an odd distinction: as Maulana Fazl-ur-Rehman pointed out, Nawaz League had opposed Musharraf’s terror wars not too long ago, and no one had sent home the maulana’s coalition for putting up similar opposition in the same province after 2002.
Then there’s the timing: militancy has been resurgent in Khyber Pakhtunkhwa for years. Yet the din of emergency only sounded when Afridi announced he would hit the streets over access to his jailed leader, Imran Khan. Bloody terror attacks, and there were several, were never the trigger point.
If there was an explanation, it came — intentionally or otherwise — from prime minister Shehbaz Sharif the day emergency was declared. Sharif cited the PTI’s Long March protests at length: ‘Islamabad ki charhai…ka napak mansooba,’ was how he described it to his cabinet, before thanking Maulana Fazl for trying to keep the peace between the centre and the PTI (the maulana has since blamed the centre for backpedalling on its commitment). ‘It’s now or never,’ concluded Sharif, ‘…History will remember us for such decisions, in this way or that way.’
But history is already heading in that way, not this one: displacing a duly elected provincial government with a two-thirds majority is certainly memorable, but not for reasons the prime minister may suspect. After all, it’s a question of perspective: when Asif Zardari imposed governor’s rule in Punjab in February 2009, then-deposed chief minister Shehbaz Sharif had taken a much poorer view of the issue. The same president is now doing it on the same man’s advice in Khyber Pakhtunkhwa: the unity regime has imposed both emergency as well as governor’s rule.
Breaking down emergency
These two provisions of the Constitution — emergency under Article 232, and governor’s rule under Article 234 — have different purposes and different tests. Exceptions exist in the affairs of states, and they are a part of the law for a reason: Pervez Musharraf was sentenced to death not for the act of declaring emergency in 2007, but for expressly refusing to use the Constitution to do it.
That said, there are rules to follow: emergency requires the threat of war or external aggression, or an internal disturbance beyond Peshawar’s power to control. Governor’s rule, by contrast, is the answer to a narrower problem: when a provincial government can no longer function under the Constitution. Both have trade-offs: while the provincial assembly retains some of its lawmaking powers under emergency, those powers can be handed off to Islamabad under governor’s rule.
Yet whereas governor’s rule cannot be extended beyond six months, emergency — subject to parliamentary approval — does not contain any hard outer limit within the text. Crucially, emergency also lends the centre an umbrella to suspend fundamental rights under a third provision, Article 233.
For reasons obvious, the unity regime has decided to go for broke, and push both buttons 232 and 234. By mixing two very distinct provisions in the same soup, it can try and claim the best of both worlds: emergency that can go on and on, that can swallow up fundamental rights, and that can, for the present, shutter the assembly via the governor.
Of course, opposition protests, at least at the time of the proclamation, neither amount to external aggression nor to internal disturbance required for emergency. They also do not speak to the breakdown of provincial government required for governor’s rule.
This is quite apart from the fact that going for a combo deal is a strange step: Article 232 assumes a provincial government overwhelmed by events, and leaves its assembly standing. Article 234 says the government itself cannot function constitutionally. It is hard to imagine both being true (and, in any event, neither is).
Plus, the unity regime is diving over guardrails it once built itself: the Eighteenth Amendment requires a resolution of the province’s own assembly for an internal emergency. Failing that, each house of parliament must approve within 10 days. Zardari, who signed off on the original amendment once upon a time, has used the backdoor: at no point did the province consent.
What becomes of the PTI government?
Afridi’s ministry may have been displaced for now, but it cannot be ousted outright. That can only happen when he loses the legislature’s confidence: as a Supreme Court concurrence put it in Pir Sabir Shah v. Federation in 1994, ‘The president, therefore, cannot dismiss the chief minister and the provincial cabinet in exercise of his power under Article 234.’
Afridi thus returns the second the proclamation of governor’s rule is lifted, per Sabir Shah, along with his cabinet and assembly. As for ‘history remembering’, Sharif has his own party men to thank for securing such a verdict in 1994, that too against the Bhutto-Zardaris’ attempt at ouster.
‘History will remember’: what have the courts held?
A year after Sabir Shah, when the same PPP thought to remove chief minister Manzoor Wattoo in Punjab, it again ended in tears: Shehbaz Sharif, then leader of the opposition, even raised the alleged plot in the provincial assembly. The Lahore High Court ruled against the PPP’s power grab: to impose governor’s rule under Article 234, a ‘breakdown of constitutional machinery’ was a must. No such breakdown was in the offing then in Punjab, nor now in Khyber Pakhtunkhwa.
As for emergency, the test is even starker. Again, the ruling regime would know: in May 1998, the prime minister’s brother Nawaz Sharif had imposed emergency under Article 232 and suspended fundamental rights under Article 233, right after Pakistan and India’s nuclear tests.
But Nawaz’s emergency was challenged in the Supreme Court by former president Farooq Leghari and one Imran Khan, described (in a strange echo of network television’s ongoing ban) as ‘chairman of a political party Tehrik-e-Insaf’. While the Court ruled in favour of emergency, it did so explicitly on the basis of ‘imminent danger of external aggression’.
In 1998, that meant mushroom clouds. In 2026, it means Sohail Afridi’s caravan meandering down from Peshawar.
Not least, it felt the government’s claims of lawlessness in Sindh and sectarian killings in Punjab didn’t count as actionable internal disturbances, and that Islamabad had no good reason to suspend fundamental rights. The Court struck down the suspension.
Compared to the present, context is also important. Under Article 232, Chief Justice Ajmal Mian held in Leghari, ‘the existence of the nation itself is at stake’. In 1998, that meant mushroom clouds. In 2026, it means Sohail Afridi’s caravan meandering down from Peshawar.
Let the voter decide
The unity regime’s latest disaster is not only self-inflicted, it is also self-defeating. Back when Zulfikar Ali Bhutto dismissed the National Awami Party’s ministry in Balochistan in 1973, it was for reasons that rhymed with today’s: terror, disloyalty, and the backing of hostile powers. Yet the only thing Bhutto managed to destroy was his opposition. After Quetta fell, the NAP’s coalition in the frontier (led, in yet another irony, by Maulana Fazl’s father Mufti Mahmood) resigned in protest. A four-year insurgency followed in one province, and mayhem and murder in the other.
It turns out that displacing an elected government in a restive land has been tried before. The only way through, in both Khyber Pakhtunkhwa and Balochistan, is through greater representation, not less.
When Pakistan did prevail against insurgency in the previous round, it was because of a hard-won consensus between state and society. That consensus is fracturing. Emergency will be its accelerant.