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SCOPE OF JUDICIAL REVIEW DURING EMERGENCY

May 30, 1998

The Government took a historical decision to give a benefiting response to India’s flaring of nuclear muscles. But the detonation of the Bomb by Pakistan has resulted in a Constitution fall out, which wisdom demanded, should have been avoided.

Proclamation of Emergency under Article 232 and Suspension of fundamental rights under Article 233 have marred jubilation of a considerable part of the nation, as the same applies expression of no confidence in the “patriotism” and “sense of responsibility of the Pakistani peoples. A totally unnecessary proclamation issued on 28th of May, 1998 informs the nation that while responding to the wake up call to stand by 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 mention in chapter 1 of part 11 of Constitution (Article 8 to 28) as a sequel to this proclamation the Supreme Court of Pakistan which was seized of cases under Article 184(3) of the Constitution seeking enforcement of fundamental rights, and some other similar cases under Article 199, deferred them from hearing. A couple of leading National Dailies have also opined that during existence of this proclamation such cases shall not see light of the day and would remain pending.

The suspension of fundamental rights and Proclamation of Emergency under Article 232 is quite paradoxical objective of such Proclamation pronounced by the Cabinet being emergency financial measures etc. an attempt is being made to see as to how the available powers of judicial review commonly known as powers to issue writs by the Superior Court, are affected by a Proclamation of Emergency and Consequential Notification under Article 233. Although  the Spokesman of the Cabinet while briefing the national 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 fight of foreign exchange and regulation of economy in the post test scenario yet the capable Law Ministry did not deem it necessary to advert to the proper course, expressly provide by the Constitution under Article 235 and instead invoked Article 232 which primarily designed to concentrate power and the executive authority of the Provinces in the opposition and others have rightly criticized the government of making attempts to concentrate powers in their hands under the disguise of nuclear test. Such proclamation has also exposed the country to international criticism over the powerful Electronic World Media like BBC and CNN who are looking for opportunities to tarnish the image of our country and wish “go for a kill” on some pretext or the other.

Going by the book the powers available to the Superior Court under Article 199 (i)(a)(i) and (ii) (b) (i) (ii) remained 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, hebeas corpus, and quo warranto. Most important of all, being power to declare any executive action without lawful and of no legal effect. As such the power of judicial review of any executive action including those rendered by the highest state functionaries like President and the Prime Minister continue to remain subject to judicial review of the Superior Courts. Only one power under Article 199 i.e. 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 order of the 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 under Article 233 specifically refers to the suspended fundamental rights and confines itself to those falling in Chapter 1 of Part II therefore, any other fundamental right interpreted as such by the Supreme Court of Pakistan shall remain available and the Supreme Court shall be duty bound to enforce such 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 1 of the Constitution. The 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 respectively under Article 232 and 233. Some judgment 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 power and jurisdiction to enforce such a right and adjudicates upon the controversy brought before the Court by any aggrieved person.

It is trite law that the ouster of jurisdiction of the Superior Courts is not to be readily presumed and required 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 action 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 the Nuclear Testing; it should only make endeavours to promote national solidarity, unity and further coherence. It should act in unison with the national aspiration in meeting threats of external aggression at the hands of fanatic fundamentalist like B.J.P. The government should avoid steps that help to project and attract an allegation that even during a situation of national emergency is more anxious and keen to grab and accumulate more and more power for itself, to do, God knows what?