Pakistan: Constitutionality of the Proclamation of Emergency

Law Library Stacks

Back to Current Legal Topics

Executive Summary

On November 3, 2007, General Pervez Musharraf, the Chief of Army Staff (COAS) and the President of Pakistan, issued a Proclamation of Emergency (POE) in Pakistan followed by the Promulgation of Provisional Constitution Order (PCO) and the Oath of Office (Judges) Order, 2007. The main stated objective of the emergency, and the orders issued following it, was "to end judicial activism." The Consitution was suspened and judges, who failed to take the new oath of office, were dismissed.  The PCO barred judges from making any order against the President and the Prime Minister, or any person exercising authority under them.  The POE led to nationwide protests demanding restoration of rule of law and fundamental rights and termination of emergency.  Lawyers, human rights activists, and opposition political leaders were arrested.

Background

Staging a military coup in 1999, General Prevez Musharraf ousted the democratically elected government of Prime Minister Nawaz Sharif and assumed the title of Chief Executive.  In 2001, he appointed himself to the office of President of Pakistan.  In a referendum conducted in 2002, in which he was the sole candidate, he got himself elected as President for a period of five years – a procedure not prescribed by the Constitution of Pakistan.[1] Upon being elected as the President, he did not give up the post of Chief of Army Staff (COAS). 

In 2007, before the expiration of his five year term as President, petitions were filed in the Supreme Court of Pakistan opposing his eligibility to contest the presidential election while also being the COAS.  Just days before the pronouncement of court decision on these petitions, on November 3, 2007, Musharraf suddenly issued a Proclamation of Emergency (POE) on the country.  The Constitution was suspended and was followed by mass arrests of public personalities, human rights activists, and opposition political leaders.  The international community was at a loss to understand the cause and course of the General’s action in the midst of hearing of election petitions against him.  

In the wake of the Proclamation of Emergency, while laying the blame for the POE on the doorsteps of the judiciary, Musharraf stated that the action became imperative to end judicial activism and the hurdles which the Supreme Court was creating in the Government effort to return to complete civil rule.[2]  Quoting President Abraham Lincoln in support of his action he declared that he, too, “broke laws and usurped the rights of the people to preserve the Constitution.”  Castigating the judiciary he stated, “[o]n the one hand, Pakistan’s sovereignty has been seriously challenged by terrorists and on the other the country’s system is semi-paralyzed due to judicial activism.”[3]

The General’s preempting a judicial order on the election petitions by the issuance of the POE, may appear incomprehensible, however, it appears the real objective was to forestall the judicial verdict against him.  The Constitution of Pakistan empowers the President to issue a POE if the security of the country is threatened by war or external aggression, or by internal disturbance which may be beyond the control of a Provincial Government.[4]  Since the COAS has no constitutional authority for making such declaration, it may aptly be described as a martial law order in the garb of emergency.

Following the POE, police and other law-enforcement agencies swung into action in a crackdown, apparently, in anticipation of a country-wide campaign against the POE, leading to arrest and detention of political leaders, prominent and active lawyers, and members of the public.  The police beating the lawyers (external link) within public view was a sight never seen before in Pakistan.[5]  Thousands of protesting lawyers were clubbed and tear gassed.  In the Multan city, two judges, who took the oath of office, on being threatened by the lawyers, fled the court.[6]

Back to Top

Executive-Judiciary Relations

Since the reinstatement from suspension of the Chief Justice of Pakistan (CJP), the Supreme Court became emboldened to assert judicial independence which the Constitution provided.[7]  Following the imposition of a similar POE in 1999, Musharraf suspended the Constitution and issued a Provisional Constitution Order (PCO) that also required judges to take a new oath under the Oath of Office (Judges) Order, 2000.[8]  Later, the Parliament and the Constitution were restored in 2002 and 2004 respectively, but the members of the judiciary did not renew their oaths upon the Constitution.  Thus, they continued operating without a constitutional oath.[9]  Because of the oath under the 2000 PCO, the judiciary was under a restraint from asserting its independence in the matter of granting relief warranted by the Constitution.

Despite the above constraint, however, the Supreme Court set aside privatization of Pakistan Steel Mills which ruffled feathers of the Government and caused annoyance, especially for the Prime Minister who was responsible for making the order.[10]  As is further evident from the following cases, the Government got wary of the CJP’s style of judicial activism.  He questioned freely high Government officials and threatened action against them in case they failed to show the legality of their actions.  Such exercise of judicial independence in the following cases upset the military regime and their mutual relations became strained even further.

Back to Top

Cause of the Conflict

Nawaz Sharif Case

After Prime Minister Nawaz Sharif was deposed in a bloodless coup by General Musharraf, he was charged and convicted on charges of tax evasion and treason.  Instead of suffering imprisonment, by mutual agreement, Sharif was sent abroad on a 10-year of exile in 2000.  The 10-year exile term ended short on August 23, 2007, when the Supreme Court granted Sharif’s petition to return to Pakistan.[11]  However, his return to Pakistan on September 10, 2007 proved even shorter, as the police within hours of his landing in Islamabad ordered him to board another flight again into exile (external link) to Saudi Arabia.[12]

For disobedience of the court order allowing him to return to Pakistan, on September 11, 2007, Sharif filed a contempt petition against the Government of Pakistan.[13]  The hearing of the contempt petition on October 17, 2007,[14] “again brought into sharp focus the confrontation between Musharraf and the judiciary, which was initially sparked by the General’s failed attempt to sack Justice Chaudhry.”[15]  The CJP sought to pin point the official responsible for deportation of Sharif in violation of its order.  The court asked customs officials to explain their failure to document Sharif’s arrival and departure, and the National Accountability Board to explain its failure to take Sharif into custody after they presented him warrants of arrest.

At the hearing on October 30, 2007, the Foreign Secretary, Riaz Muhammad Khan, stated that the Prime Minister personally called him to arrange a VVIP flight to Jeddah.  The Chairman of Pakistan International Airlines (PIA), too, submitted in a statement that the Additional Foreign Secretary and Chief of Protocol asked him to arrange a VVIP flight PK 7095 to take Sharif into exile again.[16]  Upon hearing such statements, the CJP observed that these statements suggest that the Prime Minister had violated the orders of the Court.  Upon hearing the observation, the Attorney General conceded that there was a clear violation of the court orders and promptly requested an adjournment to enable him to discuss the issue at the highest level.  The court granted it until November 8, 2007.  It became obvious that the CJP would issue a notice of contempt against the Prime Minister.  In this context, therefore, it is pertinent to notice that the PCO states that no court would issue an order against the Prime Minister.

The Missing Persons Case

In 2006, the Human Rights Commission of Pakistan (HRCP) issued a 340 page report stating that a large number of persons, and growing at an “alarming rate,” have been picked up by intelligence agencies and taken to be detained in secret locations.[17]  Musharraf went on record to suggest that the “jihadis” and not the intelligence agencies were to be held responsible for their disappearances.[18]  The Asian Human Rights Commission on Pakistan, too, backed it stating that “some 600 person are believed to have disappeared during this year following their arrests by the law enforcement agencies.”[19]  The HRCP Chairman, Asma Jahangir, filed a petition on behalf of the families of missing persons in the Supreme Court of Pakistan.

The Supreme Court, which maintained subdued silence in the past in such cases, took up the missing persons case when the CJP constituted a bench to hear them and sent notices to the Attorney General and the ministry of interior to answer questions and for filing a detailed reply to account for such persons.[20]  The Attorney General, despite repeated instructions from the Court did not appear in the court but, instead entrusted the matter to the Deputy Attorney General (DAG).  The ministry of interior, too, did not file a reply as directed by the court.  Finally, at the hearing on April 10, 2007, the DAG in frustration stated before the Court that—


  • “It’s a very sensitive case and I am completely helpless.  All I can do is to contact Interior Ministry and that I did.  But they didn’t give me any information about the whereabouts of those missing people.”[21]

After five hearings since December 2006, no clue as to the whereabouts of the missing persons could be known and the DAG, lamenting his inability to obtain information about the missing persons from the ministry, remarked[22]—

  • “The crisis in the country is due to the non-enforcement of the Constitution … I have sentiments, too, being a father, a brother and a husband and feel the difficulties of the families of the missing persons.  Therefore, I cannot face them.”

Musharraf’s Cases

After Musharraf’s decision to contest the presidential election and continuing to act also as COAS, six petitions challenging his eligibility to contest the presidential election on the October 6, 2007 vote were filed in the Supreme Court.  The constitutional issues involved were whether Musharraf was constitutionally eligible to be both president and chief of the army staff and whether he could run for office of the president while being the army chief.  One of the petitioners was a former Supreme Court judge, Wajihuddin Ahmed, who resigned in 2000 in protest against being required to take a new oath of office under the 2000 PCO.  He was assisted by lawyers who campaigned against the military rule.  Another petitioner was Makhdoom Amin Fahim, the vice chairman of the Pakistan People’s Party (PPP), headed by the former Prime Minister Benazir Bhutto.

The challenge to Musharraf’s eligibility was based on a violation of the constitutional provisions in Article 63(1)(d) and (k) which lays down disqualifications for a person to be elected a member of the parliament and for the office of the president in the following terms[23]—

63. Disqualifications for membership of Majlis-e-Shoora (Parliament).—

(1) A person shall be disqualified from being elected or chosen as, and from being a member of the Majlis-e-Shoora (Parliament) if—

…

(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or

…

(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service…

Apparently, a government servant cannot contest a presidential election for two years after retirement from government employment.  This legal action was considered the biggest obstacle to Musharraf extending his eight-year rule. 

A bench of nine judges, headed by Rana Bhagwandas began hearing these petitions on September 17, 2007.  As the hearing was to begin, Pakistan’s Election Commission (EC) stated that it had made an amendment to the rule relating to the presidential election.  The amendment, to be made through a notification, was approved by the President on September 10, 2007.  The effect of the amendment was that Article 63 of the Constitution would not apply to the forthcoming 2007 presidential election.  The EC also stated that the text of the notification would be published today, September 17, 2007.  It sparked spontaneous accusations that the change by the EC was designed to pave the way for the re-election of Musharraf.[24]  Regarding the power of the EC to make the above amendment, former CJP, Saeeduzaman Siddiqui is of the view that “the commission could not issue a notification to change the criteria for a presidential election.”[25]  Similarly another CJP, Sajjad Ali Shah said “only the parliament had the powers to alter the constitutional requirements.”[26]

On September 28, 2007,[27] the court dismissed the election petitions on technical grounds, and while allowing the election to proceed, directed the petitioners to file objections against Musharraf’s nomination before the EC.  If the EC accepts nomination, petitions could be filed in the Supreme Court challenging their acceptance.  The six-three decision in favor of the president gave Musharraf the prospect of another term of five years. 

After the EC accepted the nomination of Musharraf, petitioners challenged the same by filing petitions anew on October 2, 2007, and prayed for grant of stay against the presidential poll to be held on October 6, 2007.

Musharraf’s Second Case

At the hearing of these petitions, the court in allowing election to proceed also ordered the EC not to publish the election result until the disposal of the petitions by the court.  Thus, the announcement of the election result was subject to a decision of the Supreme Court.  It was during the hearings of these petitions that the Government ministers began warning publicly that the military would impose martial law and fire judges if judicial verdict invalidates Musharraf’s election.[28]  Some commentators observed that “Musharraf seems to be giving the Pakistani people an impossible choice: ‘democracy’ if he succeeds in his bid to stay in power or martial law if the judiciary tries to prevent him from remaining in office.”[29]

The Attorney General, Malik Qayyum leading the government’s case against legal challenges to Musharraf’s election, in response to such statements or rumors of martial law, stated in the court that Martial law will not be imposed.  However, he was evasive in response regarding a Proclamation  of Emergency, whereupon Justice Javed Iqbal, the lead judge of the 11-member bench hearing the petitions observed that “[w]e will decide this case in accordance with law and constitution … the court cannot be influenced by the threat of martial law or extra constitutional measures.”[30]

Back to Top

Proclamation of Emergency and Provisional Constitution Order

Proclamation of Emergency (POE)

Musharraf, apparently, was not prepared to risk hearing a possible adverse decision of the court. Suddenly on November 3, 2007, without waiting for a court verdict on the election petition, he issued a Proclamation of Emergency(POE).[31] It is noteworthy that “the President” is empowered to issue a proclamation of emergency in exercise of his powers under Article 232 or 234 of the Constitution.  The Proclamation of November 3, 2007 does not indicate the provision of the Constitution relied on for its issuance by the COAS.  The above stated provisions of the Constitution show that the President may exercise the power for reasons embodied therein.  In any case, the exercise of the power for issuing a proclamation by the President is not unlimited, for the Constitution describes the purposes and parameters of such exercise.

Article 232 empowers the President to declare emergency if the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond control of a Provincial Government.  Under Article 234 also a declaration of emergency may be made if the President, upon receipt of a report from a Governor in a Province, is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the Provisions of the Constitution.  In 1997, the Lahore High Court observed that “the power to issue Proclamation is not unbridled or uncontrolled but is circumscribed by two conditions.  First, that the President must be satisfied and secondly, that the satisfaction must be of the affairs of the Province …The satisfaction must be objective and based upon some material having nexus with the purposes of Article 234 …”[32]  COAS has no role in a declaration of emergency.

The instant Proclamation of Emergency lists eight grounds relating to the judiciary as the basis for its issuance and three relating to worsening law and order problems arising out of activities of extremists and terrorists.[33]  It does not list the specific provincial areas affected by extremist and terrorist activities, nor the threat of war or an external aggression.  In the end, while defending the above proclamation, Musharraf appears to have faulted the judiciary by stating that “judicial activism had brought the country to a complete standstill … they created problem for me after I was elected president by with [sic] 57 per cent vote.  They kept on dragging the issue and did not allow its notification …”[34]  Apparently, the CJP represented the biggest challenge to Musharraf’s authority.

Provisional Constitution Order[35] (PCO)

The PCO (external link), too, was issued by COAS, and authorized the President to exercise wide powers of amending the Constitution, as may be expedient.  He also suspended fundamental rights of the people.  Courts were not allowed to call into question the POE or the PCO, nor could they make any order against the president or the prime minister, and any other person exercising jurisdiction under their authority.  Since the PCO was issued by the COAS, it would appear as if he was granting powers to the president to amend the Constitution.

The PCO requires that judges shall be governed by and be subject to the new oath of office and such further orders as the President may issue.  Thus, a judge in refusing to take the new oath (external link) of office would cease to hold the office of a judge.[36]

The oath required judges to abide by POE and PCO.  New judges also must be sworn to the same oath of office.  Supreme Court judges would be sworn before the President and High Court judges by the Governor of the Province.

Back to Top

Post Emergency Events

As soon as the rumors of emergency became afloat, attorney Aitzaz Ahsan filed an application in the Supreme Court for issuance of a certiorari for voiding the POE and the PCO.  In an unprecedented move, on November 3, 2007, seven judges of the Supreme Court, including the CJP, overturned the POE and the PCO and restrained the Chief of Army Staff, corps commanders, staff officers, and other civil and military officers from acting under the decree, as an interim order and set up hearing of the application for orders by a full court on November 5, 2007.  The order also restrained Musharraf and the prime minister from taking action contrary to the independence of the judiciary and asked all judges to refrain from taking anew the oath of office.[37]  However, the Government placed the CJP and other judges who refused to take the oath of office under house arrest.  In fact, the CJP was served with an executive order that his services were no longer required and he was escorted back home which was surrounded by police.  Such actions of the authorities disabled the court to pass any order on the validation of the presidential election.

With the appointment of new judges and, being given the oath of office, in the reconstituted Supreme Court, on November 6, 2007, the Attorney General of Pakistan moved an application DMA No. 2874 of 2007 in Constitution Petition No. 73 of 2007 praying that the order of the Supreme Court by seven judge made on November 3, 2007, be declared null and void because the order was made without taking the new oath of office and without issuing a notice to the Government.  The court made an order accordingly, further declaring that the previous order shall be deemed to have never been passed.

Subsequently, the new Supreme Court dismissed all six petitions challenging the election of Musharraf.  Musharraf vowed to step down as COAS before taking the oath of office as President.[38]  On November 29, 2007, Musharraf stepped down (external link) as COAS after handing over the command to General Kayani and was sworn in as the Civilian President of the country.[39]

Back to Top

For more information on Pakistan see:

Prepared by Krishan Nehra, Senior Foreign Law Specialist

November 2007

  1. Pakistan Const. 1973, art. 41(3) and (7). [Back to Text]
  2. Emergency to End Judicial Activism, The Dawn, November 4, 2007, available at http://www.dawn.com/2007/11/04/top12.htm (external link). [Back to Text]
  3. Id.  [Back to Text]
  4. 1973 Pakistan Const. art. 232. [Back to Text]
  5. Police Battle Lawyers in Pakistan, The New York Times, Nov. 6, 2007, available at http://www.nytimes.com/2007/11/06/world/asia/06pakistan.html?hp (external link). [Back to Text]
  6. Lawyers Against the General, Economist.com, Nov. 9, 2007, available at http://economist.com/world/asia/
    displaystory.cfm?story_id=10102956&CFID=23253021&CFTOKEN=84054442 (external link)    . [Back to Text]
  7. Pakistan Const. 1973, art. 2A and the Annex. [Back to Text]
  8. The Oath of Office (Judges) Order, 2000, Order No. 1. [Back to Text]
  9. Pakistan: Human Rights Situation in 2006, Asian Human Rights Commission, available at http://material.ahrchk.net/hrreport/2006/Pakistan2006.pdf (external link) (PDF) (last visited Nov. 17, 2007). [Back to Text]
  10. Constitutional Petition No. 9 of 2006 & Civil Petitions No.345 & 394 of 2006, available at http://www.supremecourt.gov.pk/hcjbd.htm (external link). [Back to Text]
  11. Pakistan High Court Allows Return of Exiled Leader, International Herald Tribune, August 23, 2007, available at http://www.iht.com/articles/2007/08/23/asia/23cndpakistanb.php (external link). [Back to Text]
  12. Sharif Return Ends in Deportation, CNN.com, Sept 10, 2007, available at http://www.cnn.com/2007/WORLD/asiapcf/09/10/pakistan.sharif/index.html. [Back to Text]
  13. Pakistani Court Gets Petition on Ex-Premier, Washington Post.com, Sept. 12, 2007, available at http://www.washingtonpost.com (external link). [Back to Text]
  14. PakSC Hears Contempt Petition Filed by Sharif, The Times of India, Oct. 17, 2007, available at http://timesofindia.indiatimes.com/World/Pakistan/
    Pak_SC_hears_contempt_petition_filed_by_Sharif/articleshow/2468366.cms (external link)    . [Back to Text]
  15. Id. [Back to Text]
  16. Hearing of Nawaz Sharif’s Deportation Case in Supreme Court Adjourned, China View, Oct. 30, 2007, available at http://news.xinhuanet.com/english/2007-10/30/content_6975938.htm (external link). [Back to Text]
  17. The Missing Persons Case – They Remain Missing, The Glasshouse, Apr. 12, 2007, available at http://politicalpakistan.blogspot.com/
    2007/04/missing-person-case-they-remain-missing.html (external link)    . [Back to Text]
  18. Id. [Back to Text]
  19. PAKISTAN: the Human Rights Situation in 2006, Asian human Rights Commission, available at http://material.ahrchk.net/hrreport/2006/Pakistan2006.pdf (external link) (PDF) (last visited Nov. 16, 2007). [Back to Text]
  20. Supra, note 17. [Back to Text]
  21. Id. [Back to Text]
  22. The Missing Persons Case (Part II), The Glasshouse, Apr. 21, 2007, available at http://politicalpakistan.blogspot.com/2007/04/missing-persons-case-part-ii.html (external link). [Back to Text]
  23. Pakistan Const. art. 63 and 41(3) and (7). [Back to Text]
  24. Amendment Sparks Accusations, Gulfnews.com, October 12, 2007, available at http://archive.gulfnews.com/articles/07/09/17/10154207.html (external link). [Back to Text]
  25. Id. [Back to Text]
  26. Id. [Back to Text]
  27. Court Clears Musharraf to Seek Re-election, The Guardian, Sept. 28, 2007, available at http://www.guardian.co.uk/pakistan/Story/0,,2179353,00.html (external link) (Nov. 17, 2007). [Back to Text]
  28. Pakistan: Musharraf Should Accept Ruling on Re-Election, Human Rights Watch, October 24, 2007, available at http://hrw.org/english/docs/2007/10/24/pakist17130.htm (external link). [Back to Text]
  29. Id. [Back to Text]
  30. Hearing on Musharraf’s Eligibility Case Adjourned, People’s Daily Online, November 3, 2007, available at http://english.people.com.cn/90001/90777/90851/6295909.html (external link). [Back to Text]
  31. Proclamation of Emergency, The Dawn, Nov. 4, 2007, available at http://www.dawn.com/2007/11/04/top16.htm. [Back to Text]
  32. Manzoor Ahmad Wattoo v. Federation of Pakistan, 49 A.P.L.D. 1997 Lahore 38. [Back to Text]
  33. Supra, note 31. [Back to Text]
  34. Emergency To End Judicial Activism, The Dawn, Nov. 4, 2007, available at http://www.dawn.com/2007/11/04/top12.htm. [Back to Text]
  35. Provisional Constitutional Order, The Dawn, Nov. 4, 2007, available at http://www.dawn.com/2007/11/04/top15.htm (external link). [Back to Text]
  36. PCO oath [Pakistan], Jurist, Nov. 19, 2007, available at http://jurist.law.pitt.edu/gazette/2007/11/pco-oath-pakistan.php (external link). [Back to Text]
  37. Seven Judges Reject PCO Before Being Sent Home, The Dawn, Nov. 4, 2007, available at http://www.dawn.com/2007/11/04/top2.htm (external link). [Back to Text]
  38. Pakistan High Court Dismisses Most Challenges to Musharraf R-Election Bid, Jurist, Nov. 19, 2007, available at http://jurist.law.pitt.edu/paperchase/
    2007/11/pakistan-high-court-dismisses-most.php (external link)    . [Back to Text]
  39. Musharraf Retire to Full-Time Politics, The Dawn, Nov. 29, 2007, available at http://www.dawn.com/2007/11/29/top1.htm. [Back to Text]

Back to Top

Last Updated: 08/07/2012