1. KH. MUHAMMAD YOUSUF SARAF, J.---A Habeas Corpus Writ Petition under sections 25-A and 25-B of the Constitution was filed in this Court on the 2nd of December 1971. The detenu Irshad Ahmed, a resident of Muzaffarabad, has been arrested under rule 21 of the Civil Defence Rules.
2. On the 23rd of November 1971 after India launched an all out attack on the Eastern Wing of the country, the President issued a proclamation of Emergency, which was followed by a Notification on the 1st of January 1972, suspending the operation of sections 2-A, subsection (2), clause (b) and 25-B of the Con--stitution. The contention of the Government was that the Writ Petition was liable to be dismissed as the powers of this Court to issue a writ of Habeas Corpus had been suspended while the contention of the petitioner was that on the 23rd of November the President had no power to proclaim an Emergency and, therefore, there was neither an Emergency in force in the country nor was the Notification mentioned above of any legal con--sequences. The matter was, therefore, referred to the Fall Bench vide my order dated the 6th of February 1972.
3. On the 23rd of November 1971 the President issued the following proclamation of Emergency: "Whereas a critical situation has arisen due to the Indian attack on East Pakistan; And whereas there is danger of Indian aggression against Azad Government of the State of Jammu & Kashmir; Now, therefore, the President of the Azad Government of the State of J & K hereby proclaims a State of Emergency in the State and declares that immediate and effective action be taken to meet the situation fully.
4. The Legislative Assembly met in early December and passed the Azad Jammu & Kashmir Government (Second Amendment) Act of 1971 which was published in the Gazette on the 15th of December 1971 after receiving the assent of the President, and which added the following two new sections to the Government Act, 1970:- "Section 36.2. Powers of proclamation.-(1) If the President is satisfied that a grave emergency exists in which the security of Azad Jammu & Kashmir Territory is threatened by war or external aggression or by internal disturbances, he may issue a proclamation of emergency.
(2) A proclamation shall be laid before the Legislative Assem--bly as soon as conditions make it practicable for the President to summon that Assembly, and if approved by the Assembly, shall remain in force until it is revoked or if disapproved, shall cease to operate from the date of disapproval.
(3) A proclamation declaring that the security of Azad Jammu & Kashmir Territory is threatened by war or external aggression may be made before the actual occurrence of war or any other aggression if the President is satisfied that there is imminent danger thereof.
5. Section 37.3.-(1) While a proclamation issued under section 36 is in operation, the President may, by order, declare that right to move any Court for the enforcement of such of the rights conferred under section 25-A, subsection (2), clause (b) and section 25-B, as may be specified in the order, and all such proceedings pending in any Court for the enforcement of the rights so specified, shall remain suspended for the period during which the proclamation is in force.
(2) Every order made under section 37 shall, as soon as may be, be laid before the Assembly.
6. Section 38.-(1) The proclamation issued under section 36 may be varied or revoked by a subsequent proclamation ;
(2) The validity of any proclamation issued or order made under section 36, section 37 and section 38 shall not be questioned in any Court."
7. Thereupon on the 1st of January 1972, the President issued the following Notification:- "Whereas a proclamation of Emergency has been issued by the President, Azad Government of the State of Jammu & Kashmir under No. H & P/A-33(39)/6276-B/71, dated 23rd November 1971.
8. Now in exercise of the powers vested in him under sec--tion 37(3)(1) of Azad Jammu & Kashmir Government (Second) Amendment Act, 1971, the President is pleased to order and notify that right to move any Court for the enforcement of such of the rights as are conferred upon the citizens of the State under section 25-A, subsection (2), clause (b) and sec--tion 25-B of Azad Jammu & Kashmir Government (Amendment) Act, 1971, and ail such proceedings pending in or made before any Court for the enforcement of aforesaid rights shall remain suspended for the period during which the proclamation of Emergency is in force."
9. In the Constitution as it was enforced in 1970, the powers of the President have been elaborately defined in sections 10, 12, 16, 17, 20, 21, 22, 24 and 30. The power to declare a State of Emergency is however, mentioned neither in these nor other sections of the Act. They were conferred upon him for the first time on the 15th of December 1971, when the Second Amendment Act was published in the Gazette. The President therefore obviously had no power on the 23rd November 1971 to issue such a proclamation.
10. It was contended that the President should be deemed to have had inherent powers as Head of the State to issue such a proclamation. This argument perhaps flows from the general misconception In the country about the Presidential form of Government which treats it though not exactly the same but at least as something akin to the powers of the Great Moghuls. It is sometimes lost sight of that the Presidential form is also a democratic form of Government. The main distinctions between it and the Parliamentary form of Government are that in the case of the former the powers of the Executive and the Legislature are more sharply and clearly defined; the executive powers in the case of the former vest in the President while in the latter case they vest In the Cabinet which may be termed as the work--ing committee of the Parliament; while in the case of the former, the President cannot be removed from office by a vote of no confidence nor can he dissolve the Assembly before the expiry of its full term, in the case of latter, the Cabinet can be voted out of office at any time and the Prime Minister also can get the Assembly dissolved, at his convenience, to seek a fresh mandate from the electorate.
11. A perusal of the Azad Kashmir Constitution shows that strictly speaking, it can be termed neither Presidential nor Parliamentary because unlike the Presidential system as in force in the United States or Pakistan, the A. K. President can be removed from office by the Legislature through a vote of no confidence though it has for understandable reasons been made a little difficult by providing that the said vote must be passed by at least a two-third majority. Similarly the President has been empowered to dissolve the Assembly at any time at his discretion though also for understandable reasons, it has been made difficult as prior consultation with the Adviser of the Govern--ments Senior Officer in the Pakistan Government, has been made obligatory. It thus represents a compromise between the two forms of Governments.
12. In any case, the powers of the President are defined in both forms of Constitutions. So far as the power to proclaim an Emergency is concerned, it is a matter of vital importance.
13. The State of Emergency empowers him to suspend the operation of fundamental rights; to deprive citizens of their liberty; to substitute summary trials and regulations in place of ordinary trials and normal laws of the land etc., ere. Obviously such a totalitarian power cannot be assumed to exist in the absence of an express provision. In Pakistan, the President was expressly clothed with this power under Article 191 of the 1956-Constitution. In the Constitution of 1962, this power was again expressly invested in him under Article 30.
14. In Azad Kashmir we do not have anything like what is called "the constitutional traditions" as understood in Britain. The President at the time derives his authority from a written Constitution. We have no doubt that in the case of written Constitutions such as ours, the President cannot exercise powers beyond those specified in and granted by the Constitution. To hold otherwise, would amount to destroying its sanctity and permitting erosions that may end nowhere.
15. The doctrine of State Necessity also has no application here because the Legislative Assembly was already in existence and could proclaim an Emergency or invest the President with the power to do so. Again, the very fact that it did through the Second Amendment Act of 1971 invest the President under section 36 with the power to declare a state of Emergency, unmis--takably shows that the President had no constitutional authority, even theoretically speaking, to issue Proclamations of Emergency. We therefore hold the President's Declaration of Emergency, dated the 23rd of November 1971 as unconstitutional.
16. Next we come to the issue of Notification dated 1st January 1972 whereby the President has suspended the operation of the Constitutional provisions relating to Habeas Corpus Writs.
17. Undoubtedly the President had on the 1st day of January 1972 the power to issue such a Notification but it depended upon the existence, as a pre-condition, of a State of Emergency in accordance with the provisions of the Constitution. The power to declare an Emergency, it may be recalled, is given under section 36. Section 37 which authorises the President to suspend the Writ of Habeas Corpus begins with the words: "While a Proclamation issued under section 36 is in operation . . . ."
18. As section 36 did not exist on the 23rd of November and the proclamation of Emergency has for that reason been declared unconstitutional, and no fresh proclamation was Issued on or after the 15th day of December 1971 when the power to issue 14 such a proclamation was for the first time available to him, the Notification in question suspending the Writs of Habeas Corpus was clearly invalid and ineffective.
19. The petition will now come up before the Division Bench for further proceedings.