ISLAMABAD: The unexpected remarks made by Chief Justice Iftikhar Muhammad Chaudhry on Wednesday about possible imposition of a state of emergency in Balochistan startled the legal community with some legal experts saying that only the executive had the authority to take such a step.
When contacted for comments on the chief justice’s remarks during the hearing about the law and order situation in the province at the Quetta registry, they said the court had no authority to order or direct the federal government to impose emergency in any part of the country and that it was the sole prerogative of the country’s chief executive.
Some of them having a soft corner for opposition parties suggested that although the apex court had no authority to directly impose emergency in any part of the country, it could suggest to the federal government to invoke articles of the Constitution regarding imposition of emergency if the situation worsened.
The bench comprising Chief Justice Iftikhar Chaudhry, Justice Khilji Arif Hussain and Justice Jawwad S. Khawaja is hearing a petition on law and order situation and human rights violation in Balochistan with particular reference to cases of missing persons.
The electronic media kept flashing the CJ’s remarks throughout the day, but the debate started when Information Minister Qamar Zaman Kaira, while briefing reporters on the decisions of a cabinet meeting in the afternoon, categorically stated that the judiciary had no role in a decision to impose emergency and that it was the authority of only the chief executive to take such a decision.
Perhaps after realising that his remarks could create a new controversy and aggravate the already stressed government-judiciary relations, Mr Kaira said the chief justice had only hinted at a constitutional provision and given no directives.
“Kaira Sahab is right. Only the executive has the authority to declare emergency,” said renowned jurist Justice (retd) Fakharuddin G. Ibrahim while talking to Dawn. The veteran legal expert expressed his surprise over the reported remarks of the chief justice and questioned the judiciary’s powers in this regard. “What powers do you have? I don’t know in which direction things are moving,” he said.
Another senior Supreme Court lawyer, Ikram Chaudhry, read out Article 232 of the Constitution and said only the president on the advice of the prime minister could impose emergency in a province.
Article 232 states: “If the president is satisfied that a grave emergency exists in which the security of Pakistan or any part thereof is threatened by war or external aggression, or by internal disturbance beyond the power of a provincial government to control, he may issue a proclamation of emergency.”
However, a resolution by the provincial assembly of the province is required for imposition of emergency due to internal disturbances “beyond the powers of a provincial government to control”.
Ikram Chaudhry was of the view that the court’s jurisdiction would begin only when a notification regarding imposition of emergency was challenged before it.
He said the media might have “misquoted or misunderstood” the chief justice’s remarks.Justice (retd) Wajihuddin, who has recently joined the Pakistan Tehrik-i-Insaf (PTI), agreed that only the executive had the power to impose emergency, but said if the situation became so serious that one could not even hoist the national flag then the apex court could “order, suggest, recommend or whatever you may call it”, to the government to invoke the articles that allowed imposition of emergency in a province.
There is total chaos in Balochistan. Pakistan’s flag cannot be hoisted out of Quetta. “People are being picked up almost daily.
If the situation is so bad and the government has completely failed, then there is no option but to impose emergency.”
He said the chief justice through his remarks was actually asking the rulers to open their eyes. The court, he said, could ask the government that if there was a provision in the Constitution then why it was not invoking it.
Justice (retd) Tariq Mehmood, a former judge of the Balochistan High Court who had refused to take oath under the Provisional Constitution Order of military dictator Gen Pervez Musharraf, said he had no knowledge about any provision of the Constitution under which a court could order imposition of emergency.
Mr Mehmood said he was not aware of the background and under what context the chief justice had made such remarks, but the court should keep its focus on the real issue of missing persons for which it had been holding hearings in Quetta. He said it was surprising for him to see some lawyers declaring on TV channels that the judiciary had the authority to proclaim emergency.