The Constitution of Pakistan, 1973 Developed by Zain Sheikh

(a) Constitution of Pakistan (1973) Art. 232

The Proclamation of Emergency was issued during the Martial Law Regime. On being satisfied that a grave the emergency existed in which the security of Pakistan was threatened by the external aggression the then President of Pakistan issued it on 23rd of November 1971. The emergency had not ceased when the Constitution of the Islamic Republic of Pakistan was enforced on the 10th of August 1973. It was provided in Article 280 that the Proclamation of Emergency “shall be deemed to be a Proclamation of Emergency issued under Article 232, and for the purposes of clause (7) and clause (8) thereof to have been issued on the commencing day, and any law, rule or order made or purporting to have been made”. The Constitution in Part X (Article 232 to 237) provides for three kinds of Emergencies or abnormal situations which call for a departure from the normal Governmental Functions of the country viz., (a) the Emergency under Article 232 due to external or internal aggression (we may call it to be a National Emergency to distinguish it form the next category), (b) failure of the Constitutional machinery in a State (Article 234) and (c) Financial Emergency (Article 235). This case, however, is concerned only with the ‘National Emergency’. The President, under Article 232, may issue a “Proclamation of Emergency’ at any time if he is satisfied that the security of Pakistan or any part thereof has been threatened by war, external aggression or by internal disturbances. The Emergency, means the existence of the conditions whereby the security of Pakistan or any part thereof is threatened by war, external aggression or internal disturbances and it exists when the President makes the Proclamation of Emergency. The actual occurrence of war or of any internal violence is not necessary to justify a Proclamation of Emergency by the President. The President may make such a Proclamation if he is satisfied that there is an imminent danger of such external or internal aggression. [p. 1257] A

(b) Constitution of Pakistan (1973) Art. 232(7) [as amended by Constitution (Third Amendment)

Proclamation of Emergency—May continue indefinitely unless disapproved by joint sitting of both houses of Parliament or President terminates it.

The Proclamation of Emergency has to be laid under clause (7) of Article 232 before a joint sitting which has to be “summoned by the President to meet within thirty days of the Proclamation being issued” and under sub-clause (a) it “shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved be a resolution of the joint sitting.” It was further provided in clause (b) (it has now been substituted by Constitution (Third Amendment) Act, 1975) that it “may, by a resolution of a joint sitting, be continued in force for a period not exceeding six months at a time”. The Proclamation was continued by a resolution of the joint sitting as was required under clause (b) of paragraph 7 and they were duly notified. Under the last resolution passed in this respect the Proclamation was to continue till 13th of February 1975. But before that clause (b) of paragraph 7 was substituted by the Constitution (Third Amendment) Act (Act XXII of 1975) and it provided that the Proclamation “shall, subject to the provisions of paragraph (a) cease to be in force upon a resolution disapproving the Proclamation being passed by the votes of the majority of the total membership of the two Houses in joint sitting”. The restriction of continuing the Proclamation by a resolution of a joint sitting has been removed. It may now continue indefinitely unit it is disapproved by a joint sitting by a resolution of the two Houses or the President terminates it. [p. 1258] B

(c) Constitution of Pakistan (1973) Art. 232

Proclamation of Emergency—Only suspends distribution of legislative powers between Federation and Provinces—Parliament can thus meet Emergency by Legislation over any necessary subject, as in unitary Constitutions.

During the operation of the Proclamation of Emergency, Parliament notwithstanding the provisions contained in clause (c) of Article 142, has the power to legislate as regards the matters which are within the competence of the Provincial Legislate as regards the matters which are within the competence of the Provincial Legislature (Article 232(2)(a)). The Proclamation does not suspend the Provincial Legislature. It only suspends the distribution of legislative powers between the Federation and the Province so that the Parliament may meet the Emergency by legislation over any subject as may be necessary as if the Constitution was unitary. [p. 1258] C

(d) Constitution of Pakistan (1973) Art. 232

Proclamation of Emergency—Law made during Emergency by Parliament which it was not competent to make but for Emergency—Ceases to have effect, to extent of incompetence, after six months of cessation of Proclamation of Emergency—Things done or omitted to be done before expiration of such period, however, excepted—defence of Pakistan Ordinance, 1971, so far as it provides for matters within exclusive jurisdiction of Provincial Legislatures—Valid law so long as Proclamation of Emergency operative.

If a law is made by Parliament during the Emergency which but for such Emergency it would not have been competent to make, it shall cease to have effect, to the extent of incompetence after a period of six months after the Proclamation has ceased to be in force, except as regards things done or omitted to be done before the expiration of that period. It is by virtue of this power that the Defence of Pakistan Ordinance, 1971 so far as it may have made provisions for any matter which was within the exclusive jurisdiction of the Provincial Legislature can be a valid law so long as the Proclamation of Emergency is operative. The Parliament has also under its extended jurisdiction the power to make laws under clause (3) of Article 232 conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties upon the Federation, or officers and authorities of the Federation as respects that matter. The Executive authority of the Federation, during the continuance of the Proclamation, extends to the giving of the direction to a Province as to the manner in which the executive authority of the Province is to be exercised (Article 232(2)(b). [p. 1258] D

(e) Constitution of Pakistan (1973) Arts. 232 & 233

Read with President’s Orders dated 14th August 1973 and 13th August 1974, Fundamental Rights, enforcement of—Law made by State or any executive action taken by it—Cannot be challenged during Emergency on ground of inconsistency with Arts. 15 to 19 & 24—Right to move Court for enforcement of other Fundamental Rights, suspended by President’s Order of 14th August 1973, however, exists.

(f) Constitution of Pakistan (1973) Art. 232

Proclamation of Emergency given constitutional protection—Not open to any exception—Proclamation issued by President’s order under Art. 232—Not questionable in view of President being empowered to make such proclamation on being satisfied as to existence of grave Emergency threatening Pakistan or any party of Pakistan with war, external aggression or internal disturbance beyond power of Provincial Government to control—Whether emergency does or does not exist—Dependent on subjective satisfaction of President and President sole judge of matter—President sole judge of matter—President’s decision in such behalf—Not justiciable.

The Defence of Pakistan Ordinance, 1971 and the Defence of Pakistan Rules, 1971 were also deemed to have been validly made in pursuance of the Proclamation of Emergency by the legal fiction. The Proclamation was given the Constitutional protection and, therefore, is not open to any exception. Even if it has not been so done and a Proclamation had been issued by the President under Article 232, it wold not have been questionable, because the President is empowered to make a Proclamation when he is satisfied that a grave emergency exists in which the security of Pakistan or any part thereof is threatened by the war or external aggression or internal disturbance which is beyond the power of Provincial Government to control. The issuance of the Proclamation depends on the subjective satisfaction of the President and whether an emergency exists or not is a justiciable. In Emperor v. Benoarilal A I R 1945 P C 48, it was held that it “does not rest with the Courts to challenge” the view of the Governor-General when the emergency exists. This has been the consistent view of the superior Courts. It has now been specifically provided in clause (2) of which relates to Emergency Provisions shall not be called in question in any Court. It was contended that although there were valid reasons for issuing the Proclamation of Emergency, they no longer exist now, because the security of Pakistan or any part thereof is not threatened by war or external aggression and thee is also no internal disturbances. It was further contended that the hostility with India came to an end by the conclusion of Simla Agreement in June 1972, the Prisoners of War have also arrived and a number of treaties and arrangements have been arrived at between the Government of Pakistan and India.

Held: The issuance of the Proclamation depends on the subjective satisfaction of the President, and its discontinuance also depends on his decision unless two Houses in joint sitting disapprove the Proclamation by resolution passed by the votes of the majority of the total membership. Just as the Courts cannot investigate whether the circumstances justifying the making of the Proclamation did in fact exist, they cannot also examine whether the circumstances have changed justifying its revocation. [pp. 1259, 1260] G & H

(g) Constitution of Pakistan (1973) Art. 232

Emergency—Whether Islamic State in state of perpetual emergency and concept of emergency un-Islamic.

To say that there was perpetual emergency and then to contend that there was no concept of emergency in Islam is a contradiction in terms. On the contention that a Muslim State is constantly at war with the anti-Islamic forces, no exception can be taken to the issuance of the Proclamation of Emergency, because if it is done it only reflects the existing conditions. In the event of emergency a unified action is necessary by reason of emergent circumstances internal or external, and calls for he exercise of extraordinary power by the Government to met the situation. In case there is a perpetual emergency in an Islamic State, it will imply that the Government should necessarily be armed with extraordinary powers all the time, and if it were so, there will be no scope for Fundamental Rights in Islamic State because it being in a state of perpetual emergency, the enforcement of Fundamental Rights is bound to fetter the powers of the government to deal with the emergent situation. But it is inconceivable that there should be an Islamic State without the Fundamental Rights. [p. 1262] I