A Personal Emergency

Nomenclature is important here. This word, "emergency", is being shoved down our throats to confuse us into thinking that what General Musharaff has done may be just a little less "unconstitutional" than it actually is. Yes, it is correct that the Constitution recognizes the word "emergency" and if certain conditions exist a "proclamation of emergency", with limited consequences, may be made under the Constitution but in no case does the Constitution permit its own blanket suspension and it admits of no situation in which an army chief who is no more than the equivalent of a Grade 22 civil servant, may have a role in the governance of the country.

Article 232 of the Constitution provides that where the country's security is threatened by war or external aggression or where internal disturbances in a province are beyond the control of the provincial government of that province, the President may issue a proclamation of emergency with some of the following possible—not mandatory---consequences:

i. National Assembly may make laws for the affected province (instead of the provincial assembly of that province)

ii. The Federal Government, either itself or through the Governor of the province, may assume all the functions of the provincial government and may also suspend (only such) provisions of the Constitution as are necessary for carrying out the purpose(s) for which the emergency is imposed but no provision relating to the High Courts may be suspended or affected.

iii. Right to move a court for enforcement of the Fundamental Rights listed in the Constitution may be suspended and the state may make laws in derogation of some of the Fundamental Rights i.e those guaranteed by Article 15 (Freedom of Movement), Article 16 (Freedom of Assembly), Article 17 (Freedom of Association), Article 18 (Freedom of trade and profession), Article 19 (Freedom of Speech) and Article 24 (Protection of Property Rights).

This is the total extent of disruption of normal life permissible under the Constitution if an Emergency is declared by the President under Article 232. Also, and more importantly, the above abnormal acts are permissible only if they are absolutely necessary for the purpose of dealing with the emergency situation and courts will always hear cases to determine if they are.

Admittedly, Pakistan is not at war nor was anyone threatening war on 2nd November. Yes, there was internal disturbance, largely of the government's own making, in Swat and some other northern parts. The only steps this could possibly have warranted under Article 232, were assumption of the powers of the provincial government of NWFP by the Federal Government. That has not been done.

So let us be clear that this judge & media specific vulgar adventurism is not an emergency under the Constitution. In Constitutional governance, an order passed by an executive or governmental authority may be challenged before a High Court which would strike it down if it were against the Constitution or any other law. Not so any longer. The PCO (Provisional Constitution Order of November 3) made by the General reigns supreme and by the PCO he has arrogated to himself the authority to pass any, repeat, any kind of whimsical order he likes and no presently existing court will hear any challenge to it even if it is against the Constitution or not in accordance with law. This is because the Constitution and the law do not exist except to the extent that the General says they do and because the new judges (?) have taken oath of allegiance to the PCO and not the Constitution. Also, while it may appear that the country continues to be run in accordance with the Constitution, that is so only because the General has adopted the structure of governance provided by the Constitution. This is merely because he finds it convenient for the day to day running of the State and not because he thought he was obliged to adopt it. He may make any amendment he likes to that structure by simply issuing an order as army chief. And in poor English at that.

So the only "Emergency" on November 3 was Musharaff's own because it appeared certain that the Supreme Court would throw out his illegal and indefensible candidacy for President. What he has imposed on us as a result of this personal emergency is Martial Law. This is not a "sort" of Martial Law or "almost" "Martial Law". It is Martial Law, full and complete, because that is what it is when an army general says "I decide".