P L D 2008 SC 735

(a)        Constitution of Pakistan(1973) Arts. 232, 233, 234, 235, 184(3), 185 & 199—

The constitutional bar of jurisdiction certainly does not permit the courts to dilate upon matter of the nature in which the courts are precluded to exercise jurisdiction, including the proclamation of emergency in the country by virtue of Articles 232 to 235 of the Constitution but notwithstanding the ouster clause, the Superior Courts in exercise of their power of judicial review, may examine the circumstances calling for justification of such action of the executives affecting the fundamental rights of people. The superior courts, in case of proclamation of emergency in the country in consequence to which Constitution is held in abeyance and is made inoperative, can also exercise power of judicial review which is inherent in the Superior Courts to examine the question regarding the existence of circumstances for justification of such extra constitutional action and State necessity.

The question as to whether an. action taken in deviation to the Constitution, except for the sake of integrity and solidarity of the country and protection of the Constitution itself is justified, cannot be answered in affirmative in the normal circumstances and such an action is certainly subject to the judicial review of the superior courts. There may be a situation leading to the imposition of emergency in the country through extra-constitutional measures in which the constitutional machinery of State becomes inoperative but there is no concept of proclamation of emergency while Constitution is operative except in the manner as provided under Articles 232 to 235 of the Constitution and an extra constitutional action by an executive authority while the Constitution is operative, may have no legal and moral justification. The courts in such situation, being custodian of the constitution,, must protect the constitution and must not condone extra constitutional action and permit impairing of the constitutional mandate except for the integrity of country or in case of external aggression against the State. There is a difference between the emergency under the Constitution and beyond the scope of constitutional provisions and also has different purposes and consequences therefore, contention of learned Attorney General that the Executive authorities have absolute power and authority to Judge the need of emergency and Court due to the bar contained in the Constitution, have no jurisdiction to interfere in the matter, is not correct interpretation of law.[p. 755] A

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