There are times when a nation faces a constitutional crisis. Unfortunately, this term has become a synonym for any situation involving conflict, so much so that at times, a judge demanding a higher salary in an agitated voice might be labelled a constitutional crisis. Yet, a crisis is a crisis precisely because it cannot be subsumed under a constitutional norm. It is for this reason that emergency measures often include the suspension of constitutional rights, the centralisation of state power, and the limitation of judicial review.
I argue that while constitutions must acknowledge the inevitability of crises, Pakistan’s emergency framework has repeatedly transformed exceptional powers into instruments of routine governance. Rather than preserving constitutional order, emergency provisions have been invoked to suspend it, entrenching executive dominance.
Constitutions across the world contain emergency provisions, either explicit or implicit. Article I, Section 9 of the United States Constitution permits the suspension of habeas corpus when in cases of rebellion or invasion the public safety may require it. Other systems rely on implicit executive authority, premised on the expectation that power will be exercised in good faith. Similar provisions exist in France and Germany. In Pakistan, Articles 232 to 237 of the Constitution regulate emergency powers. These provisions accept the inevitability of crises and attempt to constitutionalise them, thereby avoiding uncertainty. Emergency powers are thus a necessary but dangerous feature of constitutional design. Without effective safeguards, they risk undermining democratic processes and constitutional supremacy, as have been the case for us.
General Zia-ul-Haq’s 1977 emergency suspended the 1973 Constitution and inaugurated a prolonged period of martial law. Three decades later, General Pervez Musharraf’s 2007 emergency again suspended constitutional governance, dismissed the Chief Justice, and triggered nationwide protests. In both cases, emergency powers were accompanied by political repression, media censorship, and long-term institutional damage.
These episodes demonstrate that emergency provisions, once normalised, cease to function as tools of survival and instead become mechanisms of domination. Judicial resistance in such contexts has proven costly. Yet judicial vulnerability has not been confined to military regimes. In 1998, a civilian government empowered military courts under emergency laws. When the Supreme Court struck this down in Liaquat Hussain v Federation of Pakistan, it was met with public vilification and the storming of the Supreme Court building. Similarly, in Farooq Ahmed Khan Leghari, while the Court upheld the proclamation of emergency, it invalidated the suspension of fundamental rights and judicial review, holding that such suspension must be justified by national interest or public good. The then attorney-general contented that the judicial review stands excluded as the proclamation has been approved by the joint session of the parliament. The court did not approve the contention. It was held by Irhsad Hassan Khan, J. that this doesn’t affect the power of the court to review.
Faced with resistant courts as the last effective check on its authority, the government introduced the Fifteenth Amendment Bill in 1998, seeking to elevate the Qur’an and Sunnah as supreme law and to allow Parliament to override judicial barriers by a simple majority. Although diluted and ultimately weakened due to political opposition, the amendment revealed a readiness to reshape constitutional limits rather than submit to judicial scrutiny. Nothing much has changed.
In irony thick as history, the judiciary has at times erased its own footprints. The court in Tikka Iqbal Muhammad Khan drew an analogy between the circumstance and issuance of emergency in July 1977 and October 1999. The court relied on Nusrat Bhutto v the Chief of Army Staff in which the actions of the Chief of Army Staff were said to valid on the touchstone of state necessity. The court also relied upon Mahmood Ahmed khan Achakzai v. Federation of Pakistan and showed despite the constitutional amendments necessary to stop martial laws and proclamation of emergency, it was the executive which let the trumpets speak and the soldiers came. In Sindh High Court Bar Association v Federation of Pakistan, the Supreme Court rejected the invocation of salus populi est suprema lex (the welfare of the people is the supreme law) as endorsed in Tikka Iqbal Muhammad Khan, and declared the proclamation of emergency unconstitutional. The Court held that the maxim has no application to an unconstitutional assumption of power by an authority neither recognised by, nor acting within, the constitutional framework.
Now, if we were to exclude entirely the lawyer’s movement and judicial activism, we could have held that this reality explains why emergency jurisprudence oscillates between resistance and submission. But that not being the case, one really wonders; how desecrated are the fundamental rights of the people? While it may be all too easy for those in power to toss around words like “emergency” or “governor raj” as casually as shillings slipping from a pocket when pulling out a large bill, and to ignore them roll away, these words carry real consequences, consequences that ordinary people are forced to bear.
The answer does not lie in denying the reality of crises. Emergencies will occur, and constitutions must respond to them. But the response cannot be the abandonment of constitutionalism itself. As said earlier, emergency provisions exist all across the globe, but the problem becomes when one single actor controls the declaration, continuation, and termination of emergencies. It must be noted that a constitution does not fail when it is tested by crisis. It fails when crisis becomes the justification for unchecked power. So, if emergencies become routine and exceptional powers ordinary, the Constitution may still exist on paper, but it no longer governs.
