Sajid Zia
LAHORE - After the proclamation of emergency in the country by President General Pervez Musharraf, in his capacity as Chief of the Army Staff, jurists opined that it was not merely a state of emergency but ‘a martial law’ which has made its advent under the garb of emergency. The whole Constitution has again been suspended in the same way as it is done in the event of martial law, said Syed Waqar Hussain Naqvi, a renowned jurist of the city.
Naqvi says the situation is chaotic as the COAS cannot declare a state of emergency under the Constitution as it is the prerogative of the president under Articles 232 and 32 of the Constitution that too, when he has formed an opinion that a war has been declared by the enemy, or there is a threat of external aggression or internally the situation is too critical to be handled under the Constitution and extra-ordinary measures are required to deal with the same. But the measure this time around has not come through the President but the COAS, he added.
Other jurists subscribe to the view of Naqvi that proclamation of emergency as well as the PCO is unjustified and un-constitutional under the article 4 and 6 of the Constitution as on the face of it, the move looks malfide. Naqvi and other jurists say the suspension order by the eight-member bench of the Supreme Court against the PCO and ‘emergency-turned-martial law’ is holding ground and this order would be a big question in future when the said measures would come under judicial review under Article 184(3) of the Constitution.
Waqar Naqvi also dilated upon the present orders by General Musharraf outlining their effectiveness after November 15, in case no notification of his success as president for another five-year term is issued by the Election Commission which was previously stayed from that act by the SC till decision on the pending petitions on his candidature in dual office. General Musharraf has also submitted a statement showing his willingness to shed his uniform if elected as president. For a smooth sailing of the present situation, he says, it was necessary that they both were vacated and a room was created to make emergency and the PCO operate after November 15.
Former judge of the Lahore High Court and constitutional expert, Aamir Raza says the proclamation has not been made by President Musharraf, but Chief of the Army Staff, General Pervez Mushrraf tagging a PCO with the proclamation. This showed that at present the powers of the Army Chief overrides that of President Musharraf and has brought in emergency-plus, which some ministers in the Cabinet have been predicting making its way to the country, he said. He says the step of setting aside the PCO by eight-member Bench is another significant twist in the situation putting a question on the Orders.
Former judge further says the PCO follows when the Constitution is held in abeyance by the Army Chief and the same has been done fulfilling a major requirement of martial law.
The proclamation of Emergency or the PCO are open to judicial review as the court
jurisdiction remains intact under Article 184(3) and 199 of the Constitution in both the situations, he says, adding: “Had it been a simple emergency, fundamental rights might have been suspended to suit the end for which it has been proclaimed, but here operation of whole of the constitution has been suspended.
The experts say notwithstanding the state of emergency and PCO, the SC may continue to proceed with ongoing cases against the candidature of General Musharraf for his presidency of the country while holding dual office. As to whether fundamental rights in toto or partially are suspended may be as per the objective of the emergency but cases before the Supreme Court are totally different and could go on without being affected, said senior jurist and former SCBA president Hamid Khan, while counting no justification in the declaration of emergency and seeing through the measure plunging the country into a deeper crisis.
Experts have unanimity on saying that the Supreme Court or the High Court has jurisdiction to look into the proclamation of emergency to know whether any malafide intent or any consideration other than the national interest is involved. At present, Northern Areas of country are troubled by the acts of terrorism which have effects of spilling over to other parts of the country. But, removal of Iftikhar Muhammad Chaudhary as Chief Justice of Pakistan, and other judges of the superior court may be brought in nexus with troubled situation to justify the present steps, is also a question jurists posed.
Lahore High Court Bar Association Secretary Sarfraz Ahmad Cheema says the emergency and the PCO were replete with malafide for the reason every other thing has been kept intact but only the judiciary has been hit. Cheema says the community will emergency rule and would launch a movement against caring not even their life. There is no country in the world where the judiciary has been ruined in this way, he says,
adding: “ We would challenge the government steps.”
LAHORE - After the proclamation of emergency in the country by President General Pervez Musharraf, in his capacity as Chief of the Army Staff, jurists opined that it was not merely a state of emergency but ‘a martial law’ which has made its advent under the garb of emergency. The whole Constitution has again been suspended in the same way as it is done in the event of martial law, said Syed Waqar Hussain Naqvi, a renowned jurist of the city.
Naqvi says the situation is chaotic as the COAS cannot declare a state of emergency under the Constitution as it is the prerogative of the president under Articles 232 and 32 of the Constitution that too, when he has formed an opinion that a war has been declared by the enemy, or there is a threat of external aggression or internally the situation is too critical to be handled under the Constitution and extra-ordinary measures are required to deal with the same. But the measure this time around has not come through the President but the COAS, he added.
Other jurists subscribe to the view of Naqvi that proclamation of emergency as well as the PCO is unjustified and un-constitutional under the article 4 and 6 of the Constitution as on the face of it, the move looks malfide. Naqvi and other jurists say the suspension order by the eight-member bench of the Supreme Court against the PCO and ‘emergency-turned-martial law’ is holding ground and this order would be a big question in future when the said measures would come under judicial review under Article 184(3) of the Constitution.
Waqar Naqvi also dilated upon the present orders by General Musharraf outlining their effectiveness after November 15, in case no notification of his success as president for another five-year term is issued by the Election Commission which was previously stayed from that act by the SC till decision on the pending petitions on his candidature in dual office. General Musharraf has also submitted a statement showing his willingness to shed his uniform if elected as president. For a smooth sailing of the present situation, he says, it was necessary that they both were vacated and a room was created to make emergency and the PCO operate after November 15.
Former judge of the Lahore High Court and constitutional expert, Aamir Raza says the proclamation has not been made by President Musharraf, but Chief of the Army Staff, General Pervez Mushrraf tagging a PCO with the proclamation. This showed that at present the powers of the Army Chief overrides that of President Musharraf and has brought in emergency-plus, which some ministers in the Cabinet have been predicting making its way to the country, he said. He says the step of setting aside the PCO by eight-member Bench is another significant twist in the situation putting a question on the Orders.
Former judge further says the PCO follows when the Constitution is held in abeyance by the Army Chief and the same has been done fulfilling a major requirement of martial law.
The proclamation of Emergency or the PCO are open to judicial review as the court
jurisdiction remains intact under Article 184(3) and 199 of the Constitution in both the situations, he says, adding: “Had it been a simple emergency, fundamental rights might have been suspended to suit the end for which it has been proclaimed, but here operation of whole of the constitution has been suspended.
The experts say notwithstanding the state of emergency and PCO, the SC may continue to proceed with ongoing cases against the candidature of General Musharraf for his presidency of the country while holding dual office. As to whether fundamental rights in toto or partially are suspended may be as per the objective of the emergency but cases before the Supreme Court are totally different and could go on without being affected, said senior jurist and former SCBA president Hamid Khan, while counting no justification in the declaration of emergency and seeing through the measure plunging the country into a deeper crisis.
Experts have unanimity on saying that the Supreme Court or the High Court has jurisdiction to look into the proclamation of emergency to know whether any malafide intent or any consideration other than the national interest is involved. At present, Northern Areas of country are troubled by the acts of terrorism which have effects of spilling over to other parts of the country. But, removal of Iftikhar Muhammad Chaudhary as Chief Justice of Pakistan, and other judges of the superior court may be brought in nexus with troubled situation to justify the present steps, is also a question jurists posed.
Lahore High Court Bar Association Secretary Sarfraz Ahmad Cheema says the emergency and the PCO were replete with malafide for the reason every other thing has been kept intact but only the judiciary has been hit. Cheema says the community will emergency rule and would launch a movement against caring not even their life. There is no country in the world where the judiciary has been ruined in this way, he says,
adding: “ We would challenge the government steps.”
Nation on 4th November 2007
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