ARTICLE 232 of the 1973 Constitution authorizes the president to issue a proclamation of emergency if, at any time, he is satisfied that the security of Pakistan is threatened by internal disturbance.

However, the proclamation issued no Nov 3 was an unconstitutional and anomalous exercise of power in that the order held the Constitution itself in abeyance and was signed by Pervez Musharraf in his capacity as COAS.

The purported validity of this extra-constitutional regime is based on the Provisional Constitutional Order 2007 issued on the same day. The PCO, as amended, inter alia suspended fundamental rights and authorized the president to amend the Constitution and other laws.

The Oath of Office (Judges) Order 2007 was issued on Nov3. About 60 judges of the superior courts were subsequently removed form office. A few weeks later the president amended the Constitution to introduce Article 270AAA which validates and affirms the Judges Order 2007 and all amendments in the Constitution.

In recent petitions challenging the emergency and the PCO, the Supreme Court validated the regime, considering the purported constitutional cover for the removal of judges to be a past and closed transaction. The court also authorized the president to amend the Constitution as he deemed necessary.

On Dec 15, President Gen (retd) Pervez Musharraf withdrew the emergency and the PCO. If the starting point of any Constitutional analysis is judicial recognition of the de facto extra-constitutional regime, predicated on the doctrine of state necessity, the mere revocation of the emergency and the PCO would only have the effect of reviving the Constitution with the provision for protection against the removal of judges, under Article 270AAA, still intact. The president now claims that only the next parliament can restore them.

In the seminal judgment in the case of Ex parte Milligan (1866), Justice Davis of the US Supreme Court observed that "The Constitution of the United States is a law for the rulers and the people, equally in war and in peace…. The government, within the constitution has all the powers granted to it, which are necessary to protect its existence; as has been happily proved by the result of the great effort to throw off its just authority".

In view of the penchant of out rulers to revert to extra-constitutional measures and the ingenuity of its legal draftsmen in holding the Constitution in abeyance rather than abrogating it, the observation of Justice Davis is a lesson every Pakistani must take to heart .

After the adoption of the Constitution in 1973, General Ziaul Haq in his military takeover in 1977 issued the Proclamation of Martial Law and the CMLA Order 1 of 1977 on July 5. Pursuant to the Order, notwithstanding the abeyance of the provisions of the Constitution, Pakistan was subject to any orders by the CMLA, to be governed, as closely as possible, in accordance with the Constitution. The president also issued Order 1985 (RCO), whereby Article 270A was incorporated in the Constitution. The Article validated all orders passed by the military. In spite of the validation of his extra-constitutional regime by the Supreme Court, the president prevailed upon the partyless parliament to pass the Constitution (Eight Amendment) Act 1985 on Nov 11, ratifying all amendments made in the period of constitutional deviation to complete transition to the constitutional path.

In 1999, in the second period of constitutional deviation, General Pervez Musharraf did not declare martial law. He followed the same course by assuming the office of chief executive (CE) and first issued the emergency and the PCO on Oct 14. Pursuant to this Order as well, Pakistan was subject to any orders of the CE, to be governed as closely as possible in accordance with the Constitution.

Thereafter came the Legal Framework Order 2002 (LFO), which incorporated Article 270AAA in the Constitution with the express purpose of validating all extra-constitutional orders and laws made by Gen Mushrraf. And in spite of the validation of his extra-constitutional regime b the Supreme Court, Fen Musharraf also sought to manipulate parliament into passing the 17th Amendment Act, 2003, thus ratifying and completing the transition to the constitutional path.

If the history of our constitutional deviations is a guide to the future, our present rulers will also, of necessity (no pun intended), finally attempt to secure ex post facto validation of all current extra-constitutional measures by the new parliament.

The major political parties, in part due to their own compulsions, have now decided not to boycott the elections. Civil society must proactively attempt to persuade the parties to resolutely refuse to validate the purported amendments to the Constitution. Without such ex post facto validation they will remain void ab initio, a nullity in the eye of the law.

All that is necessary to effect a restoration of the remove judges is for parliament to pass a resolution, by simple majority, rejecting all the purported amendments to the Constitution, including the Judges Order 2007, with retrospective effect on the following grounds:

(i) the right to make amendments in the Constitution is the also prerogative of parliament;
(ii) the purported amendments to the Constitution are, per se, violative of Article 239 (requirement of 2/3 majority of amendments);and
(iii) the purported amendments also violate a salient feature of the Constitution, namely independence of the judiciary which parliament is bound to protect and preserve.

In Achakzai's case of 1977, the Supreme Court was of the view that "it would suffice to say that freedom bestowed upon the Parliament….. does not include power to amend those provisions of the Constitution by which of the Constitution"

And in the Zafar Ali Shah case, the Supreme Court held: " if basic features of the Constitution, power to amend the Constitution cannot be conferred on the CE of the measure larger than that which could be exercised by the Parliament. Clearly, unvridled powers to amend the Constitution cannot be given to the CE even during the transitional period even on the touchstone of 'state necessity".

In the case of Ex parte Milligan, Justice Davis concluded that "No doctrine involving more pernicious consequences was ever invented by the wit of man that the any of [the US constitution's] provisions can be suspended during any great exigencies of government. Such a doctrine leads directly to anarchy of despotism, but the theory of necessity on which it is based is false".