The Contested Emergency Declaration
In the Republic of Arvand, a sudden external military threat leads the President to declare a national emergency under Article 352 of the Constitution. The declaration is approved by the Council of Ministers but not by both Houses of Parliament. The President argues that the emergency powers are inherent to sovereignty and cannot be questioned. Meanwhile, the Supreme Court is petitioned to review the proclamation. The government claims that judicial review would undermine national security. The Constitution is silent on whether the proclamation can be judicially reviewed. The Attorney General argues that sovereignty resides in the people and that the President is only a symbol. The opposition claims that the proclamation is a fraud on the Constitution. The Chief Justice must decide whether to hear the petition.
1. Should the Supreme Court entertain the petition challenging the emergency proclamation? Discuss with reference to the concepts of sovereignty and constitutionalism.
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The Supreme Court should entertain the petition. Sovereignty in a constitutional democracy resides in the people, not in any organ of government. The President's claim of inherent emergency powers conflicts with the principle of constitutionalism, which requires that all governmental action be authorised by law. Judicial review is a basic feature of the Constitution, as held in Kesavananda Bharati and Minerva Mills. Even during an emergency, the Court can examine whether the proclamation is based on relevant material and whether it is mala fide. The silence of the Constitution does not imply immunity from review; rather, the rule of law demands that power be exercised within constitutional limits. Therefore, the Court should hear the petition to uphold constitutional supremacy and prevent abuse of power.
2. How does the concept of popular sovereignty resolve the conflict between the President's claim and the opposition's challenge?
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Popular sovereignty means that ultimate authority belongs to the people. The President, as head of state, exercises powers on behalf of the people, not as a sovereign. The opposition's challenge is essentially a claim that the government has exceeded its mandate and acted against the will of the people as expressed in the Constitution. The President's argument that emergency powers are inherent to sovereignty is flawed because sovereignty is not vested in the office of the President. The preamble of the Constitution declares that the people have adopted and enacted the Constitution, thereby establishing a constitutional democracy. Thus, any action that undermines constitutional processes, such as bypassing parliamentary approval, violates popular sovereignty. The Court, as interpreter of the Constitution, acts as guardian of popular sovereignty by ensuring that all organs remain within their constitutional bounds.