Rights During Emergency

1 June, 1998

The government took a historic, decision to give a befitting response to India’s flaring of nuclear muscles. But the detonation of nuclear devices by Pakistan has resulted in a constitutional fallout which, had wisdom prevailed, should have been avoided.

Proclamation of emergency under Article 232 and suspension of fundamental rights under Article 233 have marred jubilations of a considerable part of the nation, as this implies expression of no-confidence in the “patriotism” and “sense of responsibility” of the Pakistanis.

A totally unnecessary proclamation issued on May 28, 1998 informs the nation that while responding to the wake-up call to safeguard the sovereignty and independence of our beloved homeland, its citizens are being deprived of their fundamental rights of freedom of expression, association, travel, and other as mentioned in Chapter 1 of Part II of the Constitution (Article 8 to 28). As a sequel to this proclamation, the Supreme Court of Pakistan deferred hearing of all cases under Article 184 (3) of the Constitutional, seeking enforcement of fundamental rights, and some other similar cases under Article 199. A couple of leading national dailies have also opined that as long as this proclamation stays in force, such cases shall not see the light of day and would remain pending.

The suspension of fundamental rights and proclamation of emergency under Article 232 is quite paradoxical because the objective of the proclamation, as pronounced by the cabinet, is emergency financial measures. An attempt is being made to see how the available powers of judicial review, commonly known as power to issue writs by superior courts, are affected by proclamation of emergency and consequential notification under Article 233.

Although a spokesman of the cabinet, while briefing the press, categorically mentioned that the right of freedom of expression, assembly, and such other basic rights are not being interfered with and the government is only endeavouring to forestall panic flight of foreign exchange and regulation of economy in the post test scenario, the capable law ministry did not deem it necessary to advert to the proper course. That is expressly provided by the Constitution under Article 235. Instead, the government invoked Article 232 which is primarily designed to concentrate powers and the executive authority of the Provinces in the hands of the federal government. Therefore, the leader of the opposition and others have rightly criticised the government of making attempts to concentrate powers in their hands under the disguise of nuclear test.

The proclamation of emergency has also exposed the country to international criticism by the powerful electronic media like BBC and CNN which are looking for opportunities to tarnish the image of our country and wish to go for a kill on some pretext or the other.

Going by the book, the powers available to a superior court under Article 199 (i-a) (I) and (II-b) (I) (II) remain totally unaffected by any proclamation under Article 232 or, 233 of the Constitution. Therefore, the high courts remain possessed with complete jurisdiction to issue writs of mandamus, certiorari, habeas corpus and quo warranto. Most important of all, they have the power to declare any executive action “without lawful and of no legal effect”. As such the powers of judicial review of any executive action including those rendered by the highest state functionaries like President and Prime Minister continue to remain subject to judicial review of the superior courts. Only one power under Article 199, is the power to enforce a fundamental rights guaranteed in Chapter 1 of Part II (from Article 8 to 28), may be the subject matter of such proclamation. But such rights are dealt with by Article 199 (1-c).

Likewise, the Supreme Court while hearing an appeal from such orders of a high court shall have unfettered powers to pass any orders and issue any directions including those enumerated under Article 187, undeterred by proclamation under Article 232 and 233 of the Constitution.

The proclamation of suspension of fundamental rights specifically refers to the suspended rights and confines itself to those falling in Chapter 1 of Part 11. Therefore, any other fundamental right interpreted as such by the Supreme Court of Pakistan shall remain available and the apex court shall be duty bound to enforce these rights notwithstanding such proclamation.

For instance, Article 4 which has been held as equivalent to the “due process clause” of the American Constitution, does not fall within Chapter 1 of Part II and is located in part I of the Constitution. This article guarantees enjoyment of protection of law and to be treated in accordance with law as an inalienable right of every citizen and this article, cannot be deemed to be affected by proclamation of emergency and suspension of fundamental rights, under Article 232 and 233 respectively.

Some judgments of the Supreme Court have found fundamental rights not merely confined to Part II of Chapter 1, but have stated that such rights are found spread throughout the Constitution. Therefore, if a right is discoverable from any other provision of the Constitution, such as Article 4, the Supreme Court shall be within its powers and jurisdiction to enforce such a right and adjudicates upon the controversy brought before the court by any aggrieved parson.

It is trite law that the ouster of jurisdiction of superior courts is not to be readily presumed and requires strict interpretation. It can, therefore, be safely stated that although the present proclamation of emergency has no nexus with the objectives stated by the Constitution to be achieved by such proclamation, yet the power to embark upon judicial review of administrative actions, including constitutional dispensation shall remain intact with the superior courts. The courts may even pronounce upon as to whether Article 232 and 233 have correctly been invoked in view of the objectives statement of the federal cabinet.

While the government did commendable job in responding to the call of duty and the national consensus in going ahead with nuclear tests, it should endeavour to promote national solidarity, unity and coherence. It should act in unison with the national aspiration in meeting threats of external aggression. The government must avoid steps that help to project and attract an allegation that even during a situation of national emergency, it is more anxious and keen to accumulate more and more power for itself to do God knows what.