EXCEPTIONAL POWERS

The exceptional powers regimes provided in the Constitution, although formally indemnified against judicial review, have nonetheless been extensively adjudicated upon by the courts.

A. The Armed Forces within the Constitutional Structure

The drafters of the 1973 Constitution sought to close off the possibil­ity of future military adventurism by criminalising extra-constitutional acts to seize power as treason, retaining powers over appointment of army high command as well as providing a narrow opening for military deployment in the country. That they were unsuccessful is attested to by the two coup d’etats engineered in the years 1977 and then 1999. The provisions on treason are described below. This section looks briefly at the constitutional provisions for high military appointments and then elaborates some of the history and the principles forged as response to the invocation of Article 245, which enables the military to be called into service ‘in aid of civil powers’.

Article 242 provides that ‘Federal Government shall have control and command of the Armed Forces’ and that supreme command of the armed forces will ‘vest in the President’. Article 242(3) provides that the President, on the advice of the Prime Minister, will appoint a Joint Chief of Staff of the Armed Services and the heads of each of the three forces. A 1976 white paper on army governance advised that more command and control be vested with the civilian government and particularly in the office of the Prime Minister. Subsequent restructur­ing included the innovation of the office of the Joint Chief of Staff, to be responsible to the government but removed from operational control over the army, navy and air force. The aim was to keep the army in particular in check through internal oversight.¹ This specific change proved to be somewhat misguided, as the Chief of Army Staff (COAS), by retaining operational control over the army, by far the strongest of the three forces, was not much denuded of his powers.

The use of the executive prerogative for appointments to head the three forces has been the cause of much civil/military discontent over ^[232] the decades. The irony is that the search for the most compliant COAS by civilian leaders has backfired spectacularly; both Zia and Musharraf were picked against norms of seniority to fill this post.

The constitutional provision which provides for the armed forces to intervene in domestic affairs is Article 245. This was, in original form, more circumspect and provided only that ‘The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.’ Significant changes were made to Article 245 in 1977 when the National Assembly passed the Seventh Amendment Act after the military was called in to quell the Pakistan National Alliance (PNA)-led protests in Pakistan’s major cities. Of the two significant alterations that the Seventh Amendment authorised, one was to indemnify the acts of the government and the military, when taken under this provision, against judicial review^[233] Sub­articles were inserted to provide that the validity of any governmental orders invoking Article 245 could not be challenged and that High Court jurisdiction under Article 199 would stand suspended regard­ing acts of the military when the institution was acting ‘in aid of civil powers’.

In a 1977 Sindh High Court judgment that followed the introduc­tion of these changes, the majority accepted that as long as the armed forces acted within the ‘pith and substance’ of the role defined by Article 245, their actions would not be reviewable.^[234] One notable dis­sent relied extensively upon the ‘subject to law’ limitation to argue that courts retained jurisdiction to review army acts. In line with Ebrahim J’s dissent, a further challenge was launched against the establishment of military courts to try civilians at the Lahore High Court.

It was in this legal context that Zia took direct power and brought the army out from even the minimal review powers that had been read into Article 245.^[236] The record thereafter of the courts has been mixed.

While some judgments display an extreme deference on account of the ‘ouster’ clause of Article 245(3),^[237] a notable case from 1999 reverses this pattern.^[238] In Liaquat Hussain,^[239] Chief Justice Ajmal Mian, in writing the majority position, affirmed that the use by a civilian government of Article 245 ‘presupposes that the civil power is still there, it is neither supplanted nor effaced out’ and that the employment of the armed forces is there to ‘invigorate’ it. Under Article 245 then the army can ‘perform police functions for limited purpose of suppressing riots or preventing threatened disorder or for the purpose of maintain­ing law and order and security or to assist/help in natural calamities’. They cannot however ‘abrogate, abridge or displace civil power of which Judiciary is an important and integral part’. This judgment was authored in February 1999 and months later General Pervez Musharraf would in fact seize power through an extra-legal coup d’etat in October of that year.

B. Emergency Powers

Two broad classes of emergencies have been declared in Pakistan’s recent history. The first are those proclamations that are issued extra- legally and by the leaders of military coup d’etats. These are discussed further in this section as well as throughout the book.^[240] The second have the backing of emergency provisions in the Constitution, themselves traceable in form to the Government of India Act 1935. The ambit of emergency powers and the conditions for their invocation are detailed below, with specific attention directed at the extent of allowable rights derogation.

Constitutional emergencies are to be declared by the President. Articles 232 and 235 describe the conditions that can give rise to such a declaration: war or external aggression; an internal disturbance beyond the power of a Provincial Government to control; threats to the eco­nomic life, financial stability or credit of Pakistan or any part thereof. The most striking effect of a proclamation of emergency is to cen­tralise decision-making in the federal government and away from pro­vincial governments.^[241] [242] In a condition of emergency it is foreseen that the National Assembly may legislate on matters not generally within its competence and that the federal executive will assume the power to issue directives to provincial governments for further execution.

The constitutional emergency powers do not erode the powers of the National Assembly. In fact, the Assembly can both extend its tenure during an emergency and it has the powers to authorise or to nullify an emergency within 30 days of its initial declaration. However, when and if the Assembly passes a resolution to authorise an emergency declared ini­tially by the President, it thereafter has no power to end an emergency.¹¹ The text of the current provision is absent an original guarantee pro­vided in 1973, which provided for the lapse of an emergency within six months if not ended earlier by presidential proclamation.

The issue of revocation is now only dealt with in Article 236, which declares that ‘a proclamation issued under this part can be varied or revoked by a subsequent proclamation’. The logical inference is that it is left to the ‘sweet will of the government’, or the executive to do this.^[243] [244] However, the Supreme Court, in spite of Article 236(b), which bars any court from entertaining a challenge to the validity of a proclamation of emergency, adventurously established its powers of review in the Farooq Leghari¹ case, described further below, to include the ability to ‘review/ re-examine the continuation of Emergency’.

Following upon the declaration of a state of emergency in May of 1998 by President Tarar, a challenge was passed to this Presidential Order by the former President Leghari. The factual background of the emergency was that Pakistan had shortly followed India, the country against which it had already fought three wars, in conducting tests to establish nuclear capabilities and an emergency was imposed in order to counteract the possible effects of international economic sanctions.

The government of Nawaz Sharif additionally cited the possibility of external aggression. In taking up Leghari’s petition, the Supreme Court undertook the task of reviewing the correctness of this proclamation and found sufficient justification for the use of Article 232, as the country was found to be facing ‘imminent danger’ at the time. Tread­ing cautiously, given that Article 236(2) provides another explicit ouster of judicial review, the court did nonetheless review specific laws and executive enactments undertaken on the basis of further elaborated emergency powers.

These further emergency powers are conferred by Article 233 and allow for the suspension of fundamental rights in emergency conditions. Article 233(1) expressly provides that ‘nothing contained in Articles 15, 16, 17, 18, 19, and 24 shall, while a proclamation of Emergency is in force, restrict the power of the State to make any law or to take any executive action’ contrary to these protections.^[245] In contrast, Article 232(2) enables the President to pass an order suspend­ing additional rights for the duration of an emergency. It also specifies both that any order made under the article shall be laid before a sitting of both houses of the Assembly for approval, and that courts will be barred from the enforcement of any of the suspended rights.

While a plain reading of Article 233(1) seems to imply an extension of state powers directly consequent upon the declaration of emergency, whether or not these powers are spontaneously realised was a question posed in the Farooq Leghari case.

Liaquat Hussain, the case involving the establishment of military courts under Article 245 also tested the bounds of emergency pow­ers. In it, Chief Justice Ajmal Mian made minimal allowance for rights derogation, as the Constitution itself does not ‘visualize that the scope of Article 4, 9, 10, and 25 can be curtailed or diluted’.^[247] In the creation of military courts, these rights were all violated, and thereby the offend­ing ordinance was invalidated.^[248] Such standards of strict scrutiny were applied again in the Mian Allah Nawaz case,^[249] where state functionaries were conferred naked and unstructured power.

An account of this judicial record is aided by the acknowledgment that heightened standards of review seem always to be employed by the judiciary when military regimes are tottering and/or when democratic governments are in power. This is amply displayed elsewhere in this book as well as in section V, below, on ‘Taming the Executive’.

II.