‘Sovereign is he who decides on the exception,’ wrote the notorious German thinker Carl Schmitt in 1922.
asserted
thinker → decide → 1922
Or, put simply, whoever gets to decide when the rules stop applying is the one actually in charge.
asserted
rules → put → 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.
asserted
Schmitt → gift → parliament
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.
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subjects → fall → fashion
But as a much-quoted critique of Mr Schmitt went, ‘His preferred cure turned out to be infinitely worse than the disease.’
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cure → quote → disease
Why did this happen?
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this → happen → ?
So too, the centre tells us, that the ministry of Sohail Afridi in Khyber Pakhtunkhwa is the disease, and emergency the cure.
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emergency → tell → Pakhtunkhwa
The centre claims militancy; terror bleeding back into the headlines.
uncertain
terror → claim → 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.
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that → make → Balochistan
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.
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Afridi → say → centre
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.
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one → point → 2002
Then there’s the timing: militancy has been resurgent in Khyber Pakhtunkhwa for years.
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militancy → ’ → years
Yet the din of emergency only sounded when Afridi announced he would hit the streets over access to his jailed leader, Imran Khan.
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he → sound → leader
Bloody terror attacks, and there were several, were never the trigger point.
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attacks → be → ?
If there was an explanation, it came — intentionally or otherwise — from prime minister Shehbaz Sharif the day emergency was declared.
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emergency → be → Sharif
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).
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maulana → cite → 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.
uncertain
minister → ’ → reasons
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.
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Sharif → ’ → 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.
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regime → do → emergency
These two provisions of the Constitution — emergency under Article 232, and governor’s rule under Article 234 — have different purposes and different tests.
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provisions → have → purposes
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.
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Musharraf → exist → 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.
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emergency → say → power
Governor’s rule, by contrast, is the answer to a narrower problem: when a provincial government can no longer function under the Constitution.
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government → function → 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.
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powers → have → 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.
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emergency → extend → text
Crucially, emergency also lends the centre an umbrella to suspend fundamental rights under a third provision, Article 233.
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emergency → lend → provision
For reasons obvious, the unity regime has decided to go for broke, and push both buttons 232 and 234.
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regime → decide → buttons
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.
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that → mix → 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.
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protests → amount → emergency
They also do not speak to the breakdown of provincial government required for governor’s rule.
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They → speak → 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.
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Article → go → assembly
Article 234 says the government itself cannot function constitutionally.
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government → say → ?
It is hard to imagine both being true (and, in any event, neither is).
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neither → imagine → event
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.
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Amendment → dive → emergency
Failing that, each house of parliament must approve within 10 days.
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house → fail → days
Zardari, who signed off on the original amendment once upon a time, has used the backdoor: at no point did the province consent.
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province → sign → point
What becomes of the PTI government?
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What → become → government
Afridi’s ministry may have been displaced for now, but it cannot be ousted outright.
uncertain
it → displace → ?
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.’
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president → happen → Article
Afridi thus returns the second the proclamation of governor’s rule is lifted, per Sabir Shah, along with his cabinet and assembly.
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proclamation → return → cabinet
…and 23 more, not listed.
The Aporia
