By:
DR. A.Q.SIAL*[1]
Abstract. Constitutional history of
Constitutional obligations
Constitution is a social contract amongst the people of state for
the purpose of constituting sovereign society under a political structure. It
produces fundamentals of governing system based on grund
norms and provides for its uninterrupted subsistence under self-regulatory
system with regard to mainstay of state mechanism.[i]Constitutional law
primarily governs making, modification and variation of any constitution. The
law contains fundamental principles governing it and provides for the
construction, interpretation and validity of legal enactments on consideration
of their conformity to fundamental principles and law. Each constitution
contains provisions relating to concept, character and objectives of the state
together with extent and manner of exercise of its sovereign powers for
achieving aspirations and ideals of society constituting it.[ii] The instrument thus
reflects ideological aspiration of the people and is made through their will.
In case of federal structure it is a basic document, which lays down framework
of distribution of powers and subjects between federation and federating units.
The terms of the contract foster feelings of interdependence of belonging to an
entity and of adherence to law. An honest commitment to the goals set out in
the constitution ensures promotion of nationhood and stability of the system.
So it is a charter of government deriving its whole authority from the
governed.[iii]
Enforcement of Emergency rules
Keeping in mind the
rationale of obligations under the constitution sanctity of its preservation is
to be ensured by institutions of state. Constitutional structure of
American heritage
dictionary defines emergency as a situation or occurrence of a serious nature,
developing suddenly and unexpectedly demanding immediate action. [v]
The provisions on
state of emergency are unusual preparation in working features of the
constitution. Since independence,
Emergency
provisions to deal breakdown of constitutional machinery in a province is
peculiar in the constitution of
1.
Proclamation by the Governor General on
2.
Proclamation by the Governor-General,
3.
Notification regarding dismissal of Khawaja
Nazimuddin Cabinet,
4.
Proclamation by the Governor-General,
5.
Proclamation by the Governor-General,
6.
Proclamation by the Governor-General,
7.
Proclamation by the Governor-General,
8.
Proclamation by the President, 26th May 1956, under Art. 193 of
the Constitution assuming powers in
9.
Proclamation by the President,
10.
Proclamation by the President,
11.
Proclamation by the President,
12.
Proclamation by the President,
7th October, .1958 imposing Martial Law in the Country.[xx]
The
above instances are glaring examples of impositions of emergencies in the
country at the earliest stage of independence. These emergencies were imposed
prior to or after promulgation of the first Constitution of Pakistan 1956.
State constitutions all over the world do contain provisions on emergencies to
meet situations of crisis and eventualities happening in the affairs of states.
The Constitution of 1973 also provides to deal the situations of emergency
under the following conditions.
1. Proclamation of emergency on account of
war, internal disturbance etc.
2. Power to issue proclamation in case of
failure of constitutional machinery in a province.
3. Proclamation in case of financial
emergency.
Articles
232-237 of the Constitution deal with subject of emergency and have been in
recurrent use for purposes other than those contemplated therein. Provincial
governments have been frequent victims of the provisions. Lahore High Court
painstakingly examined the scope of enforcement of emergency in a case in which
the Federation unnecessarily used provisions of emergency. The Courts taking
note of the abuse of such provisions observed that in the event of emergency or
calamity like constitutional breakdown federation must posses necessary power
to intervene. But this power, besides being drastic, constitutes inroad into
the provincial autonomy and if not properly used, can destroy the equilibrium
between the federation and federating units. Besides leading to serious
repercussions, it also causes sense of deprivation in the units, which is not
healthy for a federation. When a proclamation of emergency is enforced, the
federal character of a polity gets transformed into unitary form and the national
government becomes the paramount authority within the country, which is not
healthy for legal structure of any state. The use of emergency turned further
imprudent when by employing it as a contrivance state constitution was
abrogated in 1958. The desperate use of emergency in the country later led to
holding the constitution in abeyance for no reason else then escaping
constitutional obligations.
Abrogating and
Holding Constitution in abeyance
Constitution
as a sacred document obtains features of lasting course of action by
comprehensive compliance of all of its obligations by all subjects. Being
the top most reservoir of authority, second to none with in-defeat able popular
sanction behind it holds capability to meet all situations. [xxi]Abrogating or holding in abeyance the
constitution are not legal concepts admissible under constitutional law.
Concept of abrogation of constitution is alien to the constitution.[xxii]
Holding it abeyance is undemocratic, illegal and uncivilized act. The sanctity
and priority to be accorded to constitution making process may also be
visualized from history of Muslims. The establishment of first Islamic state
was followed by formulation of the Charter of
Perpetual
working of the constitution, which affects life, liberty and rights of people
and also provides for governance of the country, is mandatory. It has to be
kept alive to meet social, moral, economic, political and legal demands of the
society. Constitution has to resolve problems, which may arise from time to
time extending benefits of liberties and principles of policy to all segments
of population.[xxiv]Standing
on a somewhat higher position it is the source from which all governmental
power emanates and it defines its scope and ambit so that each functionary
should act within his respective sphere.[xxv]
This
location of constitution clearly reflects the necessity of round the clock
execution of its mandatory provisions. The Supreme Court has adjudged
abrogation etc. not only illegal but usurpations of penal character. This has
been declared an offence of highest range finding its mention in the constitution
itself with maximum amount of penalty executable against any human being. This
is justifiable juristic elucidation of violation of fundamental right of the
whole nation. For such offence Supreme Court of Pakistan observed in Asma Jilani case
the liability of ‘High Treason. It therefore demonstrates that such deviations
were void ab initio and unconstitutional.
Holding the constitution in
abeyance has been the area of academic significance. Justice
Enforcement
of Extra Constitutional Orders
Since independence political
system of state was reversed many times by people belonging to state forces and
nation was deprived from self-governance of state. Imposition of their administration
was called promulgation of ‘Martial law’. Enabling power of the person
declaring martial law was the “Proclamation” followed by Laws (Continuance in
Force Order) Provisional Constitutional Order and Legal Framework Order etc.
issued by chiefs of armed forces. The proclamation of martial was followed by
destruction of legal order of the state. Force behind the controversial
proclamations has been armed power of state in the command of person issuing
proclamations. There may be no annotations on validity of proclamations in the
absence of an established national legal order in state. Nevertheless; when
state has an operating legal order (constitution) it does not admit issuance of
such proclamations outsides legal ambit on the basis of supra constitutional
orders for any reason whatsoever and by any person whosoever. Contrarily by
proclamations acts of constitutional nature inclusive of abrogation of
constitutions of the state were very often enforced.
The topical account of the term
proclamations in historical prospective is the commandment of the King or Queen
for the subjects of their dominions. Similarly the proclamation of emergency
rule, at the earlier times was for example, the beginning of the dictatorships
of Hitler in Germany, Benito Mussolini in Italy, Kemal Atatürk in
Turkey, Józef Piłsudki
in Poland, and António de Oliveira Salazar
in Portugal.[xxvii]
Since all such enforcements
were bridged to bring into play the military rule it was deemed necessary to
give that a legal exposure. To give the military rule legal portrayal the term
martial law was employed for its promulgation. So it seems indispensable to
look into the nature of the term Martial law. Jurists have defined the term
martial law from different aspects. These definitions are covering every
possible aspect of the necessity of its imposition. The scope and explanation
of the term is also found in various judgments of the courts of
Encyclopaedia Britannica defines martial law as a temporary rule
by military authorities of a designated area in time of emergency when the
civil authorities are deemed unable to function. The legal effects of
declaration of martial law differ in various jurisdictions, but they generally
involve only temporary suspension of normal civil rights and the extension to
civilian population of summary military justice or of military law. Although
temporary in theory, a state of martial law may in fact continue indefinitely.
In the English legal system the term is of dubious significance. In the words
of English jurist Sir Frederick Pollock, so-called ‘martial law, as distinct
from military law, is an unlucky name for the justification by the common law
of acts done by necessity for the defence of the
Commonwealth when there is war within the realm. In international law martial
law means the power of the military commander in wartime in enemy territory
as jus
belli.
Halsbury laws of England prescribes that when a state of
actual war or of insurrection, riot or rebellion amounting to war exists, the
Crown and its officers may use the amount of force necessary in the
circumstances to restore order. This use of forces is sometimes termed martial
law. The powers, such as they are, of the military authority cease and those of
the civil Courts are resumed ipso facto
with the termination of the state of war; and, in the absence of an act of
Indemnity the civil courts may inquire into the legality of anything done
during the state of war; even if there is an Act of Indemnity couched in the
usual terms, malicious acts will not be protected.[xxviii]
On the legal status of the
martial law as ruled by the Supreme Court it is neither more nor less than the
will of general who commands the army.[xxix]The Proclamation of
martial law as promulgated in the country not only introduced structural
destruction it introduced unconstitutional enactment process by usurpers. Under
no accepted norms martial law by itself involves abrogation of civil law of the
land and does not vest commander of the armed forces with power of abrogating
fundamental law of the country. If proclamation of martial law by itself leads
to complete destruction of the legal order, then armed forces actually create
disorder by disrupting the entire legal order of the state. Society regulated
under a constitution confirms proper execution of state political organization
may be transitory and excludes the reversal of autocratic bits and pieces.
Martial law order, martial law regulation or such presidential order, or
ordinance does not conform to the meaning of term law.
The early history of
introduction of martial law in
“The language employed in the
Proclamation is somewhat extra-ordinary. It will be noticed that neither
section 5, Independence Act, nor any other provision of law has been cited in
the Proclamation. It does not even say in clear and specific terms that the
Constituent Assembly is dissolved. Normally, whenever any order is passed, it
indicates the provision of law under which the power is exercised. The language
of the Proclamation would therefore show that those responsible for its draft
could not think of any provision of law". Laymen may surely think that the
Proclamation was issued in a hurry, and then justification sought to be found”.
President
Iskander Mirza
on
All
conditions enumerated in the Proclamation were not supported by material
reasons as commented by people involved in the affairs of making and
implementing the Constitution. Chaudhri
Muhammad Ali, the architect of the Constitution of
The
President although on
The
constitutional structure of 1956 contained enough capacity for the nation to
rectify its inadequacies and shortcoming. It was apparent from reinforcement of
entire operational body of the Constitution of 1956. What was wrong was only
for President Iskander Mirza
in the Constitution and was that portion of the Constitution, which was
replaced with arbitrary powers coupled with ousting jurisdiction of courts of
law. These were motivations behind the Proclamation and the “Laws Continuance
in Force Order” promulgated by the forces of state through extra constitutional
means at various times of abrogation of the constitutions of Pakistan.
The president abolished the political system. The
country was placed under martial law with Mohammad Ayub
Khan as Chief Martial-law Administrator. The Chief Administrator
constituted the cabinet comprising of three army generals as cabinet ministers.
President Iskander Mirza
announced that the period of martial law would be brief and a new constitution
would be drafted. The period of martial law was not brief however, the life of
his Proclamation and his tenure of office was rendered very brief. On the
evening of October 27 the ministers with contingents of armed soldiers called
on the President and informed him that he had to resign. No provision of law
was now deemed necessary to be quoted for the dismissal of President who has
desecrated the society from constitutional coverage. On mutual understanding
between the Chief Martial Law Administrator and the President Iskander Mirza was
exiled to
Proclamation of 1958
Ayub khan issued another proclamation
and assumed the office of President. Martial law enforced earlier by Iskander Mirza
through the Proclamation continued for the period of about three and half
years. Civil administration virtually going out of the hands of political
leaders fell to the management of martial law authorities. To overpower legal
structure politicians were processed under the Electoral Bodies
(Disqualification) Order (EBDO). Political parties were banned. The law[xxxv]had enough contents for
deterrence of the people who had to render national services as a politician.
Under the above law, many politicians of national stature and reverberation
standings like Suhrawardy were exiled. Some
politicians might be responsible for wrongdoing but not the political system.
State survives with the political activity and political activity without
politician is a delusion. No state can afford the absence of both. Iskander Mirza
blocked political system of the state for introducing (as he called) ‘real
democracy’ in the Country. He rooted out the system for growth of democracy,
which is contrarily produced on the principle of continuity. Every succeeding
adventurer vowed his concern to give people of
Proclamation
of 1969
Yahya Khan
Regime in pursuance of
another proclamation of
(a) The Proclamation;
(b) Any Order made in pursuance of the Proclamation
or any Martial Law Regulation or Martial Law Order; or
(c) Any finding, sentence or order of a Special
Military court or a
The Order further said that
nothing in this Order or in any law should prejudice the operation of any
Martial Law Regulation made by the Chief Martial Law Administrator or by any
person having authority from him to make Martial Law Regulations. Where any
ordinance made under Article 4 or any other law if repugnant to such
regulation, the regulation had to prevail. Any provision in any law providing
for the reference of a detention order to an Advisory Board was made of no
effect.
Proclamation
of 1977
General
Zia-ul-Haq in
pursuance of the Proclamation of fifth day of July 1977[xxxvii]and as Chief Martial Law
Administrator held the Constitution in abeyance and issued Laws (Continuance in
Force Order) No. 1 of 1977. [xxxviii]The Chief Martial Law
Administrator later on issued Provisional Constitutional Order 1981. Under the
PCO the General accumulated sweeping powers.[xxxix]Under the Orders the
military ruler constrained in similar manner the enforcement of fundamental
rights by limiting the jurisdiction of civil courts. The affairs of
The Fundamental Rights
conferred by Chapter I of Part II of the Constitution, and all proceedings
pending in any Court, in so far as they were for the enforcement of any of
those rights were suspended.
This document although had
constitutional implications for the legal system. Yet it had no legal sagacity
in its pattern and deprived the population legal protection of their basic
rights. Keeping in mind the scenario close to imposition of military rule the
opening instance of limitations may be deemed indispensable. Nevertheless the
curtailment for the period longer than sanctioned under the law of necessity
indicates the fact that martial law cannot work with the system of law and
judicature. Martial law as contradiction of law can function only in the
absence of law of the land. Martial law regime of Zia ul Haq like
his predecessor crossing the prescribed limits set by the Court remained
conscious of their reaction. Ultimately he had to make amendments for
establishing military courts in the country. The superior judiciary was further
deprived of its powers through amendments to review the decisions of the
military courts, the legality of martial law and orders issued by martial law
authorities.
Proclamation
of 1999
General Pervez Musharaf in 1999 seeking support of another
proclamation enforced emergency throughout the country and promulgated
Provisional Constitutional order (PCO) of the pattern of the ‘Laws continuance
in force Order’. On imposition of military rule under the Proclamation of Chief
of Armed Forces the representative institutions first suspended and later stood
dissolved by the order of Chief Executive. The imposition of this rule was
radically different from rest of the episodes. There was no constitutional
breakdown necessitating the enforcement of emergency or any rule unknown to the
constitution. Emergency was already in force in the country. Constitution of
1973 was again held in abeyance. Jurisdiction of the superior judiciary was not
targeted at the opening stage.
Continuance of limited jurisdiction of the Superior Courts was allowed
by limiting functions of courts from examining the actions of military
government. Dispensing with the practice of the earlier military regimes the
judges of the superior courts were allowed to continue without taking oath
under the Provisional Constitutional Order. Imposition of military rule was
challenged before the Supreme Court. The situation changed when the judges of
the Superior Courts on
The military government during the period of emergency promulgated
the Legal Frame Work order 2002. The Order provided the amendment of
constitution 1973 again almost materially on the same line as General Zia-ul-Haq had done earlier. The regime introduced
significant alterations in Article 58, 101, 112, and 243 of the Constitution by
presidential order. Legal Framework Order 2002 amended Articles No 17, 41, 51,
58, 59, 62, 63, 63-A, 70, 73, 75,101, 106 112, 179, 193, 195, 199, 203c, 209,
218, 224, 243, 260, 268 and 277AA of the Constitution 1973. The Order later
incorporated two provisos in clause (d) & (e) of Article 51, clause (s) in
63 and a proviso in 106. The most important addition therein was the amendment
in Articles 179,193 and 195 of chapter V11 on the judicature. The amendments
had to redesign the political system by making Parliament, Cabinet and Prime
Minister fragile and lacking confidence. It elevated the status of President
dominant without having the presidential system under the constitution. The
creation of National Security Council with Chiefs of the three Armed Forces as
its dominating members had to change the power structure. The alteration in
Article 58, 101, 112, 243 led a deep controversy among political circles. The
Amendments in these Articles again created supremacy of the President in
relation to prime minister by rendering representative institutions subservient
to executive.
Enforcement
of Emergency and PCO in 2007
An overwhelming, unusual and beyond expectation attempt by the
executive organ to liberalise itself from confines of
law and accountability happened on 3rd of November 2007. The
President under his capacity as Chief of Army staff issued the Proclamation.
This Proclamation of emergency had particular direction of depriving the state
from judicial organ. In order to do so judges were required to take fresh oath
relinquishing the oath they had taken under the Constitution. Supreme Court and
High Courts were reconstituted by fresh selection consisting of judges who
agreed to do so. Before that the Constitution was in operation. The President
was in office with all of his extra-ordinary powers concentrated by him beyond
the scope of parliamentary form of government. There was a subservient executive
ready to endorse all presidential commands. This time neither was there any
situation demanding immediate action under emergency nor was it promulgated
under the provision of the constitution. Earlier incidence of military rule had
some adventurous motivations, yet this time the only intention of destruction
of state legal order was to debase the Superior Judiciary. In order to achieve
the ulterior motives the President exercising the powers of Chief of the Army Staff enforced state of emergency followed by Provisional
Constitutional Order No.1 2007. The text of Provisional
Constitutional Order (PCO) promulgated by Chief of the Army Staff General Pervez Musharraf
stated that In pursuance of the Proclamation of the 3rd day of November, 2007,
and in exercise of all powers enabling him in that behalf, the Chief of Army
Staff, under the Proclamation of Emergency of the 3rd day of November, 2007, is
pleased to make and promulgate the following Order.
The Order at the outset held the Constitution
The Order also added that
notwithstanding the abeyance of the provisions of the Constitution, but subject
to the Orders of the President, all laws other than the Constitution, all
ordinances, orders, rules, bye-laws, regulations, notifications and other legal
instruments in force in any part of Pakistan, whether made by the President or
the governor of a province, shall continue in force until altered, or repealed
by the President or any authority designated by him. Any ordinance promulgated
by the President or by the governor of a province shall not be subject to any
limitations as to duration prescribed in the Constitution. The provisions shall
also apply to an ordinance issued by
the President or by a governor, which was in force immediately before the
commencement of the Proclamation of Emergency of the 3rd day of November 2007.
In order to create superficial impression the Order stated that
notwithstanding anything contained in
the Proclamation of the 3rd day of November, 2007, or this Order or any
other law for the time being in force, all provisions of the Constitution of
the Islamic Republic of Pakistan embodying Islamic injunctions including
Articles 2, 2A, 31, 203A, 227 to 231 and 260 (3) (a) and (b) shall continue to
be in force.
Regarding the main objective of issuance of PCO the order stated
that:
All courts in existence immediately before the commencement of
this Order shall continue to function and to exercise their respective powers
and jurisdiction: Provided that the Supreme Court or a High Court and any other
court shall not have the power to make any order against the President or the
Prime Minister or any person exercising powers or jurisdiction under their
authority.
All persons who immediately before the commencement of this Order
were in office as judges of the Supreme Court, the Federal Shariat Court or a High Court;
shall be governed by and be subject to the Oath of Office (Judges) Order, 2007,
and such further Orders as the President may pass.
No court, including the Supreme Court, the Federal Shariat Court, and the High Courts, and any
tribunal or other authority, shall call or permit to be called in question this
Order, the Proclamation of Emergency of the 3rd day of November, 2007, the Oath
of Office (Judges) Order, 2007, or any Order made in pursuance thereof. No
judgment, decree, writ, order or process whatsoever shall be made or issued by
any court or tribunal against the President or the Prime Minister or any
authority designated by the President.
On speaking rationale of enforcement of emergency the Order stated
that there is visible ascendancy in the activities of extremists and incidents
of terrorist attacks, including suicide bombings, IED explosions, rocket firing
and bomb explosions and the banding together of some militant groups have taken
such activities to an unprecedented level of violent intensity posing a grave
threat to the life and property of the citizens of Pakistan. There has also
been a spate of attacks on state infrastructure and on law-enforcement
agencies. The Order alleged that some members of the judiciary were working at
cross purposes with the executive and legislature in the fight against
terrorism and extremism, thereby weakening the government and the nation’s
resolve and diluting the efficacy of its actions to control this menace. There
has been increasing interference by some members of the judiciary in government
policy, adversely affecting economic growth, in particular; constant
interference in executive functions that has weakened the writ of the
government. The police force has been completely demoralized and is fast losing
its efficacy to fight terrorism and intelligence agencies have been thwarted in
their activities and prevented from pursuing terrorists.
The statement added that some hard-core militants, extremists,
terrorists and suicide bombers, who were arrested and being investigated were
released. The persons so released have subsequently been involved in heinous
terrorist activities, resulting in loss of human life and property. Militants
across the country have thus been encouraged while law-enforcement agencies
subdued. Some judges by overstepping the limits of judicial authority have
taken over the executive anti legislative functions. The government is
committed to the independence of judiciary and rule of law and holds the
superior judiciary in high esteem. It is nonetheless of paramount importance
that the honourable judges confine the scope of their
activity to the judicial function and not assume charge of administration.
An important constitutional institution, the Supreme Judicial
Council has been made entirely irrelevant by a recent order and judges have,
thus made themselves immune from inquiry in to their conduct ant put themselves
beyond accountability. The humiliating treatment meted to government officials
by some members of the judiciary on a routine basis during court proceedings
has demoralised the civil bureaucracy and senior
government functionaries, to avoid being harassed, prefer inaction.
The law and order situation in the country as well as the economy
have been adversely affected and trichotomy of powers
eroded. A situation has thus arisen where the government of the country cannot
be carried on in accordance with the Constitution and as the Constitution
provides no solution for this situation, there is no way out except through
emergent and extraordinary measures.
On promulgation of extra-constitutional Orders emergency, which
under its constitutional sphere maintains working of judicial institution,
targeted the Superior Judiciary. Proviso of Article 232 sub-section (2)
specifically preserves working of the courts during the emergency rule. The
judicial functions of High Courts largely remain uninterrupted. Contrarily this
unconstitutional emergency was meant to overrule the entire judicial
institution so that the prevailing superiority of the executive organ would
remain unchecked. Text of the proclamation of emergency read with text of
Provisional Constitutional Order vividly indicates the objective. To sack
judges of Superior Courts the option of fresh oath administration was applied
as instrumental to get rid of judicial scrutiny.
Oath administration of Judges
Oath administration to judges
of Superior Courts is a key issue along with enforcement of emergencies and
extra-constitutional orders. Every time when state was pushed to extra
constitutional ruling the judiciary was deemed jeopardy in the way of
capricious actions. The Judiciary as guardian of the constitution is mainly
responsible to ensure preservation of the Constitution. Judges on induction to
their offices have to take oath for this responsibility in accordance with
terms of the text of oath prescribed within the constitution. Oath taking is an
important constitutional obligation for all those state functionaries who have
to perform vital state functions in which state has to exert Godly pressure in
the minds of such functionaries because it has no option except to depend upon
their conscience. Oath is a sacred or solemn voluntary promise usually
involving the penalty of divine retribution for intentional falsity. People
taking oath invoke blessings of God as a guarantee of their trustworthiness.
This is to swear by Almighty God that they are speaking the truth. This appeal
to God has for centuries been considered the surest means of obtaining truth
and attaching the person with self-proclaimed commitment. Making affirmation
and declaring to be binding upon their consciences is administration of oaths.[xlii]This very important
undertaking naturally has its self-generated force for safeguarding the
constitution.
The institution of judiciary was render inoperative to examine and
deliver judgments on legitimacy of extra constitutional rules by requiring the
judges to take fabricated oath freshly prescribed in violation of the actual
oath. This mistake was repeatedly undertaken without having regard of legal,
moral and political implications in mind. Oath taking in relation to the office
of Judges of Superior Courts as indicated in the Constitution conveys another
special meanings. This is in discharge of duties and performance of functions
honestly, with best of one’s ability and faithfully in accordance with
provisions of the Constitution and the Law. Judges of the Superior Courts are
not ordinary functionaries of the state. Judges are designated and elevated to
particular positions of prestigious institution with specified objects. The
supreme object is to solemnly swear that the Judges will bear true faith and
allegiance to the country. Like other states of the world,
(In the name of Allah, the most Beneficent, and the most
Merciful)
do solemnly swear that I will bear true faith
and allegiance to
That, as Chief Justice of Pakistan (or a Judge of
Supreme Court of Pakistan or Chief Justice or a Judge of the High Court for the
Province of I will discharge my duties and perform my functions honestly and to
the best of my ability and faithfully in accordance with the Proclamation of
Emergency of the fourteenth day of October, 1999, the provisional Constitution
Order No. 1 of 1999 as amended, this Order and the law:
That I will abide by the provisions of the Emergency
of the fourteenth day of October, 1999 the Provisional Constitution Order No. 1
of 1999 as amended this Order and the Code of Conduct issued by the Supreme
Judicial Council; That I will not allow my personal interest to influence my
official conduct or my official decisions; And that, in all circumstance, I
will do right to all manner of people, according to law, without fear or favour, affection or ill-will. May Allah Almighty help and guide me (Amen)
The text of oath prescribed
unambiguous shift of commitment and loyalty of the judges from public to
private functions. The trustworthiness, swearing to Almighty God and force of
consciousness assumed earlier was changed. Second oath was made forceful and
the required ambitions were clearly included in the text of the Order and Oath.
Divergence between the two oaths was that earlier was commitment to sustain law
and the constitution and the later was meant to uphold the discretion of the
person in command of usurped authority of state. Such style of orders and mode
of oath administration are not only against the law but are embarrassing in
nature. Judges of Supreme Court who refused to take oath under Provisional
Constitutional Order were deprived of their offices by force. Contrarily the
Judges were bound by their oath to preserve, protect and defend the
constitution and laws of
The proclamations of emergencies and PCO’s
prescribed a surprising defence that extra
constitutional steps were necessitated due to crisis for which constitution
offers no solution. This supplication is untrue because every civilised nation, whether it has a written constitution or
not, is governed in part by strict legal rules, and in part by customs or
traditions, which are called the conventions of the constitution.[xliv]Each state has its
own body of conventions and customs. Defence of
inadequacy is not true as there is Article of the Constitution providing
penalty for violation and non-compliance.
Enforcement of Martial law in
the context of political history found coverage of law of necessity, which is of particular importance in such cases.
The superior judiciary on several occasions also compromised on merits and
furnished support of necessity principle to extra constitutional steps.
Scratches on constitutional structure of
As it has been analysed that the circumstances under which proclamations
were enforced by the state defence organ were
divergent. However, all of them created same kinds of legal issues and were
operated by the usurpers almost in identical manners. All of them created
serious consequences for structural constancy and territorial integrity of the
state. By the passage of time the authorities enforcing such emergencies and
provisional constitutional orders (PCO’s) instead of
learning from the previous anomalous experiences devised fresh strategies to
defeat legal process. Rather the scope of immunity and indemnity from
constitutional liability was broadened in such a manner that enactment and
amendment of the constitution become enforceable like ‘Royal decree’.
Resolution
The description of a particular aspect of unconstitutional
enforcement of emergencies and promulgation of unconstitutional orders in
constitutional history of
1.
Supremacy
of the Constitution needs to be reaffirmed by declaring PCO’s,
LFO’s and Laws (Continuance in Force) Orders ultra
vires of the constitution. The process should
review all implications of such orders and delete the substance incorporated
through irregular amendment process in the Constitution of 1973.
2.
Superior
Courts should re-examine its judgments delivered under the instinct of compromise
on constitutional issues and rectify conflicting judgments of the past.
3.
Parliament
should also perform its responsibilities to introduce necessary constitutional
reforms in the area of provincial autonomy, parliamentary supremacy,
fundamental rights and independence of judiciary.
4.
Ascendancy
of executive organ should be drastically curtailed by effective legislation of
parliament and inflexible scrutiny of the judiciary.
1. Mohammad Asif iftikhar V. Zila Nazim and others, Pakistan
Legal Decision(PLD) 2005, Lah.,381.
9. Constitutional Documents of