Proclamation of Emergency and Judicial Review under the Constitution of Pakistan

(A Doctrinal and Comparative Analysis of Articles 232, 236 and 199 with Reference to India)

Abstract

The emergency powers establish a constitutional imbalance between state necessity and the maintenance of federalism, representative government and judicial control. The Constitution of Pakistan, 1973 provides the President with the authority to declare an emergency for any state of grave emergency when Pakistan or a part thereof is faced with any kind of war, external aggression or internal disturbance which is beyond the scope of a Provincial Government. The study examines Articles 199, 232, 233, 234 and 236, the Eighteenth Amendment, as well as a number of Pakistan’s judgments dealing with exceptional executive powers, particularly when compared to the Indian Constitution under Article 352/356. It also relies upon the history of Pakistan's martial-law era as a historical background but doesn't equate extra-constitutional military governance with a constitutional emergency. The analysis is limited to two objectives; (1) what does Article 232 require and what are the roles of the institutions involved in a proclamation, including the role of the Governor; and (2) whether an Article 232 proclamation or consequential order can be challenged before a High Court in the face of Article 236(2). This article concludes that the most viable balance between emergency power and constitutional supremacy is limited judicial review.