JURIST Special Guest Columnist Syed Umair Javed of the Department of Law & Policy, Lahore University of Management Sciences, in Lahore, Pakistan, says that General Pervez Musharraf's declaration of emergency rule is an illegal, ultra-constitutional and desperate attempt to hold on to power by unconstitutionally clipping the power of Pakistan's judiciary…

Pakistan's military ruler, General Musharraf, has for the second time in eight years imposed Martial Law in the country. One should not be led astray by the 'Proclamation of Emergency' issued by the Chief of Army Staff (COAS). Although the official TV channel of the government is busy selling the idea of an 'emergency' to its viewers, the reality remains that Pakistan is facing its sixth Martial Law since independence.

Under the 1973 Constitution, the only way for the Federal Government to issue a proclamation of emergency is under Article 232 in case the country faces a threat of war or external aggression, or internal disturbances beyond the control of a Provincial Government. The proclamation is to be made by the President and must be placed before the Parliament for the latter's approval. While a proclamation is in force, the Federal Government may make orders to the Provincial Governments and may suspend the operation of constitutional provisions with regards to provincial bodies and matters. Such orders must be approved by the Parliament. The Parliament may also legislate on provincial matters while the emergency is in force and may extend its life for up to a year. The Federal Government may suspend the enforcement of fundamental rights. However, the government may not hold the constitution in abeyance and may not suspend provisions related to the senior judiciary.

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The Proclamation of Emergency issued by the COAS today is not a proclamation under Article 232. It has not been issued by the President but by the COAS. It contains no reasons that show neither an objectively verifiable threat of war or external aggression nor an internal disturbance that was actually outside the control of a Provincial Government. It only alleges that judicial activism is hampering the war against terror and is demoralizing the executive. The proclamation holds the Constitution of Pakistan in abeyance which is not permitted under the Constitution. Pursuant to this proclamation, the political leadership is being arrested alongside of prominent lawyers. Reports indicate that the Chief Justice of Pakistan, who was illegal removed not so long ago, has been put under house arrest and that other senior judges are being forced to retake oaths under a Provisional Constitutional Order (PCO). The proclamation is hence illegal, unconstitutional and amounts to an act of treason under Article 6 of the Constitution.

The PCO is of great importance as it manifests the intentions of the military dictator. The document provides that no court will take cognizance of any order made by the government pursuant to the proclamation of emergency. It further gives power to the federal government to require that all Superior Court judges retake their oaths and provides discretion to the former to choose which existing judges to call for such an oath. Such a measure has met tremendous resistance from existing judges. As of now, reports in leading newspapers indicate that only three Supreme Court judges out of seventeen and around twenty judges out of almost a hundred from the four provincial High Courts have taken oath under the PCO. Moreover, acting on the application of the Pakistan Bar Council President, a eight member bench of the Supreme Court set aside the PCO and the Proclamation of Emergency just hours before law enforcement agencies surrounded the SC building. The bench ordered all civil and military officers and personal to disregard any illegal and unconstitutional order of the government.

The latest move by the general is an illegal, ultra-constitutional and desperate attempt to hold on to power by unconstitutionally clipping the power of the judiciary that was trying to uphold that constitution and safeguard the fundamental rights of the citizens. By clipping the power, the general has done away with the hundreds of cases challenging the actions of the executive including the case regarding his candidacy for the Presidency and the notorious National Reconciliation Ordinance.

It remains to be seen what level of protest the political, legal, and civil communities can gather in the coming days and weeks. Clearly the public can draw inspiration from the Honorable Judges of the Superior Courts who refused to retake their oath and upheld the sanctity of the Constitution.

Syed Umair Javed is a third-year law student in the Department of Law & Policy, Lahore University of Management Sciences, Lahore, Pakistan.
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