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Pakistan government's rejection of court ruling on emergency usurps judiciary

Basil Nabi Malik [third-year law student, Lahore University of Management Sciences (LUMS), Lahore, Pakistan]: "An 8 member bench of the Supreme Court has held as illegal and unconstitutional the Proclamation of Emergency and the Provisional Constitutional Order (PCO) issued today by the Chief of Army Staff. The Supreme Court restrained the Government of Pakistan, composed of the President and Prime Minister of Pakistan, from undertaking any such action which is contrary to the independence of the judiciary, and also declared that no judge of the Supreme Court or the High Courts including Chief Justices shall take oaths under the PCO or any other extra constitutional steps.

However, within hours of such a decision, the Government dismissed the judicial decision as "irrelevant". The reason given for disregarding the judgment was that under a clause of the "extra-constitutional" PCO, no action of the Government could be challenged in a Court of law. Interestingly enough, considering that the PCO itself had been declared illegal by the judiciary, it seems peculiar to validate one's decision to disregard a judgment of the Supreme Court of Pakistan on the basis of a law which has already been declared as unconstitutional by the same and only judicial apparatus of the country.

The classification of the Supreme Court's decision as incorrect and unlawful by the Government of Pakistan is tantamount to the usurpation of the functions of the judiciary, which is to make such declarations with regard to the actions of the other organs of the State. Inter alia, the executive is doing exactly what it accuses the judiciary of doing: encroaching upon the functions of the other branches of government.

The implications of this decision of the Supreme Court are profound. Never in the history of Pakistan has the Judiciary ever nullified or delegitimized a PCO issued by a Chief of Army Staff. In addition to this, the clear message of the apex court to the army staff, core commanders, staff officers and other to refrain from acting on the PCO depicts the continuing power struggle between the military and the judiciary. Not only did the Supreme Court decision state these dictums, but it also declared any future appointments of the Chief Justices and judges under the new arrangement as null and void. Hence it can be seen that a conscious effort has been made by the Court to protect itself from being "purged" of those elements which are seen to be adhering to the constitution in letter and spirit.

With the Supreme Court invalidating the PCO and emergency declaration, and the resulting setting aside of the verdict by the military led Government of Pakistan, it seems that the tug of war between the judiciary and the military is entering its final phase. However, the question is not about which institution will triumph in this battle, but rather about whether at the end, justice will prevail."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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