Constitutional Reform: A Review Of The Proposal On Public Security – Part III
Mass Usuf
Recommendations
(1) Classification of emergency situations for stratified proclamation.
If the emergency levels can be classified the proclamation may be made accordingly depending on the type of emergency by the institution assigned under each classification. Stratification will permit the proclamation to be made by the legislature or the Prime Minister on the advice of the legislature or, the President on the advice of the Prime Minister. This would act as a layered structure in order to avoid concentration of power with regard to declaring a state of emergency. For example, there is a difference between an apprehension of danger and imminent danger. The latter may demand quick response while the earlier may not.
(2) Diluting the function of the advising authority
The Steering Committee proposal states that the President on the advice of the Prime Minister shall declare a state of emergency. This is an improvement from the present position where only the President enjoys such authority (Section 2, PSO).
It is necessary in this case to clearly define as to how the Prime Minister will be sourced to provide such advice to the President. This has to be explicitly mentioned so that the Prime Minister’s advice will not be based on an arbitrary decision.
(3) Reason for the Proclamation
This has been included in the proposal and must be urged to be adopted viz. ‘The declaration of emergency shall state the basis on which such state of emergency was declared’.
(4) Institutionalise Judicial review
All aspects relating to the declaration of a state of emergency has to be subjected to Judicial review. The Proclamation or rules made under a state of emergency may continue pending judicial review. Judicial review of the undermentioned are recommended:
a) The proclamation itself, of the state of emergency;
b) Any laws or regulations made under such proclamation and,
c) Any violation of fundamental rights. This will be dealt with separately.
(4) (a) Judicial review of the proclamation
The present constitution precludes the court from questioning the proclamation made on the authority granted under the PSO.
Article 154 J (2) states that a ‘Proclamation under the Public Security Ordinance or the law for the time being relating to public security, shall be conclusive for all purposes and shall not be questioned in any Court……. ‘.
This Article has to be amended to permit the court to inquire into such Proclamation – the grounds for the making thereof, the existence of the grounds on which it has been made etc.
Moreover, Section 3 of PSO ousts the jurisdiction of the court to call in question ‘the fact of the existence or imminence, during that period, of a state of public emergency’. These dictatorial clauses must be amended paving the way for judicial review of the proclamation.
(4) (b) Judicial review of emergency laws and regulations
The PSO expressly excludes judicial oversight of acts done under the provision of any emergency regulation or any other circumstances stated therein vide. Section 8. This is considered too rigid and an incentive to abuse. While actions under emergency regulations are acknowledged to be under exceptional situations that does not justify total immunity as matters relating to the rights of subjects should be given primacy.
Therefore, Section 8 of the PSO has to be amended permitting judicial review of executive action including making of regulations, amendment and revocation. This has to be enshrined as a constitutional remedy.
(5) Impact on the Provinces
It has to be noted at the outset that the proposal on Public Security does not clearly specify or identify the Articles that will be amended, repealed or replaced and, if replaced, replaced with what, in the current constitution. There is considerable vagueness. The observations below have been made with this constraint.
A new Article 155(3A) was incorporated into the 1978 constitution via the thirteenth amendment. This Article provides for making of emergency regulations affecting the Ninth Schedule and also other statutes of the Province. It reads:
