What are the effects of the proclamation of emergency in Pakistan?

Answer 1

In Pakistan the law of emergency is given in Part X of the Constitution 1973 in Articles 232 to 237 which is exhaustive in nature. The same is reproduced for ready reference as under: "PART X Emergency Provisions

232. Proclamation of emergency on account of war, internal disturbance, etc.(1) 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 [:]

Answers.com"Provided that for imposition of emergency due to internal disturbances beyond the powers of a Provincial Government to control, a Resolution from the Provincial Assembly of that Province shall be required:

Provided further that if the President acts on his own, the Proclamation of Emergency shall be placed before both Houses of Majlis-e-Shoora (Parliament) for approval by each House within ten days.".

(2) Notwithstanding anything in the Constitution, while a Proclamation of Emergency is in force-

Answers.com) Majlis-e-Shoora (Parliament) shall have power to make laws for a Province, or any part thereof, with respect to any matter not enumerated in the Federal Legislative List or the Concurrent Legislative List;]

(b) the executive authority of the Federation shall extend to the giving of directions to a Province as to the manner in which the executive authority of the Province is to be exercised; and

(c) the Federal Government may by Orderhttp://wiki.answers.com/#_ftn3 assume to itself, or direct the Governor of a Province to assume on behalf of the Federal Government, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, any body or authority in the Province other than the Provincial Assembly, and make such incidental and consequential provisions as appear to the Federal Government to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending, in whole or in part, the operation of any provisions of the Constitution relating to any body or authority in the Province:

Provided that nothing in paragraph (c) shall authorise the Federal Government to assume to itself, or direct the Governor of the Province to assume on its behalf, any of the powers vested in or exercisable by a High Court, or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts.

(3) The power of *[Majlis-e-Shoora (Parliament)] to make laws for a Province with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties upon the Federation, or officers and authorities of the Federation, as respects that matter.

(4) Nothing in this Article shall restrict the power of a Provincial Assembly to make any law which under the Constitution it has power to make, but if any provision of a Provincial law is repugnant to any provision of an Act of *[Majlis-e-Shoora (Parliament)] which *[Majlis-e-Shoora (Parliament)] has under this Article power to make, the Act of *[Majlis-e-Shoora (Parliament)], whether passed before or after the Provincial law, shall prevail and the Provincial law shall, to the extent of the repugnancy, but so long only as the Act of *[Majlis-e-Shoora (Parliament)] continues to have effect, be void.

(5) A law made by *[Majlis-e-Shoora (Parliament)] which *[Majlis-e-Shoora (Parliament)] would not but for the issue of a Proclamation of Emergency have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation of Emergency has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period.

(6) While a Proclamation of emergency is in force, *[Majlis-e-Shoora (Parliament)] may by law extend the term of the National Assembly for a period not exceeding one year and not extending in any case beyond a period of six months after the Proclamation has ceased to be in force.

(7) A Proclamation of Emergency shall be laid before a joint sitting which shall be summoned by the President to meet within thirty days of the Proclamation being issued and-

(a) shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolutionhttp://wiki.answers.com/#_ftn4 of the joint sitting; and

Answers.com) shall, subject to the provisions of paragraph (a), cease to be in force upon a resolution disapproving the proclamation being passed by the votes of the majority of the total membership of the two Houses in joint sitting.]

(8) Notwithstanding anything contained in clause (7), if the National Assembly stands dissolved at the time when a Proclamation of Emergency is issued, the Proclamation shall continue in force for a period of four months but, if a general election to the Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolution of the Senate.

233. Power to suspend Fundamental Rights, etc., during emergency period(1) 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 as defined in Article 7 to make any law or to take any executive action which it would, but for the provisions in the said Articles, be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect, and shall be deemed to have been repealed, at the time when the Proclamation is revoked or has ceased to be in force.

(2) While a Proclamation of Emergency is in force, the President may, by Order,Answers.comdeclare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter 1 of Part II as may be specified in the Order, and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of any of the Rights so specified, shall remain suspended for the period during which the Proclamation is in force, and any such Order may be made in respect of the whole or any part of Pakistan.

(3) Every Order made under this Article shall, as soon as may be, be laid before Answers.com[both Houses of Majlis-e-Shoora (Parliament) separately] for approvalhttp://wiki.answers.com/#_ftn8 and the provisions of clauses (7) and (8) of Article 232 shall apply to such an Order as they apply to a Proclamation of Emergency.

234. Power to issue Proclamation in case of failure of Constitutional machinery in a Province(1) If the President, on receipt of a report from the Governor of a Province Answers.com], 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, the President may, or if a resolution in this behalf is passed Answers.comby each House separately] shall, by Proclamation,

(a) assume to himself, or direct the Governor of the Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, any body or authority in the Province, other than the Provincial Assembly;

(b) declare that the powers of the Provincial Assembly shall be exercisable by, or under the authority of, *[Majlis-e-Shoora (Parliament)]; and

(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of the Constitution relating to any body or authority in the Province:

Provided that nothing in this Article shall authorise the President to assume to himself, or direct the Governor of the Province to assume on his behalf, any of the powers vested in, or exercisable by, a High Court, or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts.

(2) The provisions of Article 105 shall not apply to the discharge by the Governor of his functions under clause (1).

(3) A Proclamation issued under this Article shall be laid before a joint sitting and shall cease to be in force at the expiration of two months, unless before the expiration of that period it has been approved by resolution of the joint sitting and may by like resolution be extended for a further period not exceeding two months at a time; but no such Proclamation shall in any case remain in force for more than six months.

(4) Notwithstanding anything contained in clause (3), if the National Assembly stands dissolved at the time when a Proclamation is issued under this Article, the Proclamation shall continue in force for a period of three months but, if a general election to the Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolution of the Senate.

(5) Where by a Proclamation issued under this Article it has been declared that the powers of the Provincial Assembly shall be exercisable by or under the authority of *[Majlis-e-Shoora (Parliament)], it shall be competent-

(a) to *[Majlis-e-Shoora (Parliament)] in joint sitting to confer on the President the power to make laws with respect to any matter within the legislative competence of the Provincial Assembly ;

(b) to *[Majlis-e-Shoora (Parliament)] in joint sitting, or the President, when he is empowered under paragraph (a), to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Federation, or officers and authorities thereof;

(c) to the President, when *[Majlis-e-Shoora (Parliament)] is not in session, to authorise expenditure from the Provincial Consolidated Fund, whether the expenditure is charged by the Constitution upon that fund or not, pending the sanction of such expenditure by1[Majlis-e-Shoora (Parliament)] in joint sitting ; and

(d) to *[Majlis-e-Shoora (Parliament)] in joint sitting by resolution to sanction expenditure authorised by the President under paragraph (c).

(6) Any law made by *[Majlis-e-Shoora (Parliament)] or the President which *[Majlis-e-Shoora (Parliament)]or the President would not, but for the issue of a Proclamation under this Article, have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation under this Article has ceased to be in force, except as to things, done or omitted to be done before the expiration of the said period.

235. Proclamation in case of financial emergency(1) If the President is satisfied that a situation has arisen whereby the economic life, financial stability or credit of Pakistan, or any part thereof, is threatened, he may, after consultation with the Governors of the Provinces or, as the case may be, the Governor of the Province concerned, by Proclamation make a declaration to that effect, and, while such a Proclamation is in force, the executive authority of the Federation shall extend to the giving of directions to any Province to observe such principles of financial propriety as may be specified in the directions, and to the giving of such other directions as the President may deem necessary in the interest of the economic life, financial stability or credit of Pakistan or any part thereof.

(2) Notwithstanding anything in the Constitution, any such directions may include a provision requiring a reduction of the salary and allowances of all or any class of persons serving in connection with the affairs of a Province.

(3) While a Proclamation issued under this Article is in force the President may issue directions for the reduction of the salaries and allowances of all or any class of persons serving in connection with the affairs of the Federation.

(4) The provisions of clauses (3) and (4) Article 234 shall apply to a Proclamation issued under this Article as they apply to a Proclamation issued under that Article.

236. Revocation of Proclamation, etc.(1) A Proclamation issued under this Part may be varied or revoked by a subsequent Proclamation.

(2) The validity of any Proclamation issued or Order made under this part shall not be called in question in any Court.

237. *[Majlis-e-Shoora (Parliament)] may make laws of indemnity, etc.Nothing in the Constitution shall prevent *[Majlis-e-Shoora (Parliament)] from making any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan."

In the light of the above constitutional position the brief answer of the question may be as under:

The power to issue proclamation of emergency is discretionary but to create a balance consultation with the Provincial governors has been provided. The Provincial Assemblies will work but laws made by them shall not be repugnant to any law made by the Parliament, and if made shall be void to that extent.

Fundamental rights shall remain suspended (as were available under Articles 15,16, 17, 18, 19 and 24).

Where constitutional machinery fails in a Province, Article 234 of the Constitution authorises the President to suspend whole or in part the operation of any provisions of the Constitution relating to any body or authority in the Province. This power is not wholesale. Article 234 does not authorise the President to assume to himself, or direct the Governor of the Province to assume on his behalf, any of the powers vested in, or exercisable by, a High Court, or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts.

Munir Ahmad Mughal

Answers.comNew Provisos inserted by the Constitution (18TH Amdt.) Act, 2010 (X of 2010)

Answers.comSubs. by P. O. No. 14 of 1985. Art. 2 and Sch.. for paragraph (a).

Answers.comFor such Order, in respect of N.W.F.P., S.R.O. No. 202(I)/75, dated the 16th February, 1975, see Gaz. of Pak 1975, Ext.. Pt.II, p. 329. since rescinded by S R.O. No. 522(I)/75, dated the 3rd May, 1975, see Gaz. of Pak., 1975, Ext., Pt. I1. p. 727; and For such Order, in respect of the Province of Baluchistan, see S.R.O. No. 641(I)/76, dated the 30th June, 1976, see Gaz. of Pak., 1976, Ext., Pt. II. p. 1207 since rescinded by S. R. O. No. 1161 (I)/76, dated the 6th December, 1976, see Gaz. of Pak., 1976, Ext., Pt. II, p. 2279. For such proclamation issued on 28-5-1998, see Gaz. of Pak. 1998, Ext., Pt. I, p. 32.

Answers.comThe joint sitting passed the following resolution on the 5th September, 1973 :- "That the joint sitting approves under clause (7) of Art. 232 of the Constitution read with Art. 280 thereof, the Proclamation of Emergency issued on the 23rd day of November, 1971, and the continuance in force of the said Proclamation for the period of six months following the expiration of the period mentioned in paragraph (a) of the said clause(7)." The joint sitting passed the following resolution on 10-6-1998. "That the joint sitting approve under clause (7) of Article 232 of the Constitution the Proclamation of Emergency issued by the President on the 28th May, 1998, under clause (1) of Article 232 of the Constitution." see Gaz. of Pak. 1998. Ext., Pt. III, p. 647.

Answers.comSubs. by the Constitution (Third Amdt.) Act, 1975, (22 of 1975), s. 3, for original paragraph (b) (w.e.f. the 13th February, 1975), which reads as follows :­"(b) may by resolution of a joint sitting, be continued in force for a period not exceeding six months at a time." For resolutions under original paragraph (b) approving the continuance in force of the Proclamation of Emergency, see Gaz. of Pak., 1974, Ext., Pt. III, p. 343, and ibid., p. 1183.

Answers.comThe Order suspending the right to move any court for the enforcement of certain Fundamental Rights issued vide see Gaz. of Pak., 1973, Ext., Pt. I. p. 602, has been rescinded by S.R.O. 1093(I)/74, dated the 14th August. 1974., see Gaz. of Pak. 1974, Ext. Pt. II, p. 1548. For the Order issued on 28-5-1998 suspending of Fundamental Rights, (See Notifications No. 7-3/98-Min. I, dated 28-5-1998. Gaz. of Pak., 1998, Part I, Page 31).

Answers.comSubs. For the words "a joint sitting" by the Constitution (18TH Amdt.) Act, 2010 (X of 2010)

Answers.comThe joint sitting passed the following resolution on the 6th September, 1973 :- "That the joint sitting approves under clause (7) of Article 232 of the Constitution, read with clause (3) of Article 233 thereof, the President's Order of the 14th August, 1973, made under clause (2) of the said Art. 233 and the continuance in force of the said Order for the period of six months following the expiration of the period mentioned in paragraph (a) of the said clause (7) of Art. 232." For resolution approving the continuance in force of the President's Order of the 14th August, 1973, for a further period of six months, .see Gaz. of Pak., 1974. Ext., Pt. III, p. 343. The joint sitting passed the following resolution on 10-6-1998. "That the joint sitting approves the Order made by the President on the 28th May, 1998, under clause (2) of Article 233 of the Constitution." see Gaz. of Pak. 1998. Part Ill, p. 647.

Answers.comWords "or otherwise" omitted by the Constitution (18th Amendment) Act, 2010

Answers.comWords "at a joint sitting" subs. by the Constitution (18TH Amdt.) Act, 2010