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Constitution and ‘extraconstitution’: colonial emergency regimes in postcolonial India and Pakistan
Book chapter

Constitution and ‘extraconstitution’: colonial emergency regimes in postcolonial India and Pakistan

Anil Kalhan
Emergency Powers in Asia, pp 89-120
10 Dec 2009
DOI: https://doi.org/10.1017/CBO9780511770630.005

Abstract

IntroductionOn 3 November 2007, Pakistan's President and Chief of Army Staff, General Pervez Musharraf, issued a ‘proclamation of emergency’, nominally predicated upon the rise of extremism and terrorist violence which, he asserted, ‘pos[ed] a grave threat to the life and property’ of Pakistan's citizens. In a televised address, Musharraf went further, defending the emergency as necessary to ‘save Pakistan’ and to prevent nothing less than the country's ‘suicide’. Despite these existential overtones, the emergency was widely criticised as a pretextual attempt for Musharraf to maintain power, not a means to combat terrorism. In the weeks that followed, Musharraf assumed sweeping executive powers and cracked down heavily on regime opponents.Notably, Musharraf's opponents resisted not only the crackdown itself, but also his characterisation of those measures as involving ‘emergency’ at all. Like other constitutions, Pakistan's explicitly authorises the executive to invoke emergency powers to address crises posing a severe threat to the nation. However, Musharraf's decree was self-consciously extraconstitutional, aimed at objectives not typically associated with the constitutional idea of ‘emergency’. Following a script established during earlier moments in Pakistan's history, Musharraf sought to preserve the political status quo, but by transforming Pakistan's institutional and legal order, purging independent judges from their posts and promulgating constitutional amendments and other laws by decree, rather than through normal lawmaking processes.

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