Supreme Court of Pakistan Building - Image : ImposterVT
By: Tipu Salman Makhdoom
About the author – Having a rare blend of over 18 years’ of practicing law, including legal drafting and presenting cases from the level of trial court to supreme court, along with teaching law, legal research and research writing, He is in a unique position of solving legal issues and playing his role in the development of legal philosophy.
Who invented Doctrine of Necessity; Supreme Court or circumstances? Is it really dead? What would be the true criteria of judging the imposition of next martial law; a ‘Doctrine’ of law, or the ‘Necessity’ of the circumstances? These are the questions which need pragmatic not dogmatic answers. Dogmatic are the answers coming out of fixed principles, regardless of reality while pragmatic are the answers coming out of reality, regardless of any hypothetical principles.After restoration of his Chief Justice-ship in 2009, his lordship Iftikhar Muhammad Chaudhry wrote the landmark judgment against Musharraf’s 2007 proclamation of emergency holding that Doctrine of Necessity was wrong, rather disgraceful for the nation. Strong words! His lordship was also part of the Court which unanimously approved Musharraf’s 1999 martial law holding the same Doctrine of Necessity to be an Islamic Doctrine. Strange facts! Of the five martial law cases, Hon’ble Supreme Court of Pakistan declared two impositions of martial law as illegal, that of Yahya and Musharraf’s 2007; interestingly both came after the martial law administrator had already left power.
Law gurus are claiming, feverishly, that the infamous Doctrine of Necessity has been wiped out of our jurisprudence as the Chaudhary Court has buried it beneath the fertile soil of justice. Buried a Doctrine? Who knows if this ‘Doctrine’ underneath, is going to behave like a dead monster or a seed!
Before anything else is thought about Doctrine of Necessity, lets quickly have a glance at its history. What were the circumstances that gave rise to it in the first place and how did it survive for so long?
The first milestone was Moulvi Tamizuddin Khan‘s case. In September 1954, just two years before the framing of the first ever Pakistan-made Constitution, the Constituent Assembly (elected in 1946 elections), made some important amendments in law. One of such changes transferred the powers of the Governor General over his ministers to the Assembly. Governor General dissolved the Constituent Assembly within a month. Moulvi Tamizuddin Khan, Speaker of the Assembly, filed a writ petition in the Sindh High Court against this dissolution, which decided that Governor General had no power to dissolve the Assembly. Governor General went in appeal. Supreme Court decided in favour of Governor General without saying that he had the power to dissolve the Assembly. Interesting, huh?
Supreme Court played technically. Till 1954, Government of India Act, 1935 was being used as the provisional Constitution of Pakistan. In the original Act, High Courts did not have power to issue writs. Pakistan’s Constituent Assembly had amended it and provided a provision giving powers to High Courts to issue writs. Supreme Court held that this new provision, though was passed by the Assembly, never got approval of the Governor General. This approval was part of the procedure of passing a law validly. And thus this provision giving powers to High Court to issue writs was not a valid law; in other words did not exist. Therefore, the Sindh High Court did not have the power to decide the case of Moulvi Tamizuddin. And the decision against the Governor General was set-aside on this ground.
Although this case did not deal directly with the Doctrine of Necessity, yet it provided the cause for further development of history. The writ granting provision was not the only provision of law without Governor General’s approval. There were numerous. Moulvi Tamizuddin Khan’s judgment made all those laws invalid. This created a serious Constitutional crisis. In the end, Governor General filed a Special Reference with the Supreme Court, asking for its advice on how to get out of that crisis. Supreme Court held, in 1955, that Doctrine of Necessity was part of Pakistani law under which illegal laws were legalized as the Doctrine says that “which otherwise is not lawful, necessity makes it lawful.” So was the dramatic start of the checkered history of a Doctrine that has played a most controversial role in the political history of Pakistan.
On 7th of October 1958, President of Pakistan abrogated the Constitution, dissolved Assemblies and imposed martial law. Three days later, President issued an order whereby Courts were made functional again and official name of the Country at that time viz., Islamic Republic of Pakistan, was changed to “Pakistan”. This same Presidential order directed that Pakistan will be governed, to the extent possible, according to the abrogated Constitution, which essentially meant that institutions, posts or laws created under the abrogated Constitution will continue unless abolished or changed by Presidential orders. The question of this abrogation came up before the Supreme Court in Dosso’s case. Court held that this abrogation was legal being a victorious revolution or a successful Coup d’Etat which is an internationally recognized legal method of changing a Constitution. Moreover, after success of such a revolution, legality of an action can only be checked on the touchstone of the new legal order, not on the criteria of abrogated one. Thus on the basis of martial law in field, the abrogation of the Constitution was held valid.
This successful revolution principle of Dosso’s case, however, was later on discarded by Supreme Court itself. In the Asma Jillani’s case of 1972, where the martial law imposed by General Yahya Khan was in question, Supreme Court held that principle of successful revolution as adopted in Dosso’s case was wrong. Court said that if any emergency was at hand, doctrine of necessity could have been invoked to validate and condone the illegality in order to save the country from greater chaos. However, since General Yahya imposed martial law without any necessity, same was illegal.
Just five years later apex Court legalized General Zia ul Haq‘s martial law in the 1977 case of Begum Nusrat Bhutto. Supreme Court held that Asma Jillani’s case was correct and principle of successful revolution is not available. However Asma Jillani case was not applicable as this time there was pressing necessity to impose martial law because of the dead lock between political parties. Thus, the situation was right to take an illegal step under necessity. Zia’s martial law was declared legal under the Doctrine of Necessity.Zia’s martial law lasted from 1977 to 1985, after which a new era of legal battles over validity of President’s dissolution of Assemblies under, now defunct, article 58(2)(b) of the constitution ensued. The era lasted for 14 years untill General Musharraf’s martial law imposed in 1999.
Legality of General Pervez Musharraf’s martial law came before the Supreme Court in year 2000’s Zafar Ali Shah case. All the judges on the bench, including Justice Iftikhar Muhammad Chaudhry, declared that Musharraf’s Martial Law was legal. It was held that Doctrine of Necessity was not only Islamic but was an internationally recognized doctrine. The circumstances were such as authorized General Musharraf to impose martial law, which was, thus legal under the doctrine of necessity.
Justice Chaudhry had been elevated by General Musharraf to Supreme Court before it validated his martial law. Vacancies had been created when five Supreme Court justices had refused to take oath under Musharraf’s PCO (Provisional Constitutional Order). However, Chaudhry-Musharraf relations got strained after Justice Chaudhry became Chief Justice of Supreme Court in 2005. Soon Supreme Court started auditing government’s actions. Supreme Court gave decisions against government in many sensitive cases under the Chief Justiceship of Chaudhry, most high profile among them being cases of privatization of steel mill, re-election of Musharraf as President in uniform and missing persons’ case on the allegations of several Baloch families that their relatives were kidnapped by secret service agencies.This tension reached its peak in 2007 when General Musharraf removed Justice Chaudhry from his judgeship and imposed emergency and suspended the constitution. It took two years’ of lawyer-civil society popular movement to turn the tables. So when Justice Chaudhry returned to Supreme Court as Chief Justice in 2009, General Musharraf had already resigned and left Pakistan.
The issue of legality of General Musharraf’s emergency finally came before Supreme Court in the 2009 case of Sindh High Court Bar Association. The main judgement was authored by the then Chief Justice Iftikhar Muhammad Chaudhry. It was held that proclamation of emergency was illegal. It was further held that military rule, direct or indirect, was to be shunned once and for all. It was made clear by the Court that such rules were wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theory, whatsoever. The Court went to the extent of holding that doctrine of necessity had no application to an unconstitutional assumption of power, which included imposition of martial law, notwithstanding any judgment of any Court, including any judgment of the Supreme Court of Pakistan itself.
So finally Supreme Court buried the Doctrine of Necessity beneath the heavy burden of justice. So far so good. But the question now is whether Supreme Court has disqualified itself from deciding otherwise for all times to come? Does the principle of Estoppel apply on the Supreme Court? Well, not really. Supreme Court is not bound by previous judgments; not even of its own. It is only bound by the Constitution. What is constitution and what does it really say also depends, completely, on how Supreme Court perceives it. So frankly speaking, Supreme Court has buried the Doctrine of Necessity until it decides to invoke it again; for valid reasons and pressing circumstances, of course.Supreme Court is not a natural entity. It is an artificial institution, created by the words of a constitution. When constitution is abrogated, all the structure, the hologram of institutions and posts it has created, vanishes. Logically this should include Supreme Court also. But in successive constitutional abrogations in our country we saw that, somehow, Supreme Court survives; it can float even without its base.
In principle, it goes like this; although ‘a’ constitution created it, Supreme Court is invincible, immortal. Supreme Court will decide whether it likes any new legal system or not, and if it does, it will sail the boat. Thus, when a martial law administrator abrogates the constitution, Supreme Court decides whether the abrogated constitution is the applicable system or the martial law. Historically, Supreme Court has always decided in favour of the system that was in place at the time of its judgment. Obviously, the stage of filing a petition against the imposition of a martial law comes only when the previous legal order has been successfully replaced by it. At that point in time, Supreme Court has only two options; it can either decide that martial law is the new legal order and it is working under it or that martial law is a usurpation of power. In this second case, Supreme Court would be deciding that there is no legal system in which it can exist; essentially signing its suicidal note. In case of any such decision, Supreme Court will dissolve automatically, and immediately.
We can look at this scenario with a tint of ridiculing the selfishness of the apex court, or, we can look at it sensibly. Sensibly looking at it, selfishness? Would an ‘institution’ behave selfishly? Would the judges, who know they would be retiring in few years’ time in any case, behave selfishly? Certainly NO! Then why does Supreme Court always decide in favour of the ruling martial law? When Supreme Court decides that martial law is now the applicable legal order, there is no logic for it to hold that it is illegal. Change of legal system means change of legal-value system. With the successful imposition of a martial law regime, martial law becomes the criteria for right and wrong. Question of legality of martial law at that point is always a political question. Once Supreme Court decides that martial law is now a political reality, what legal doctrine can nullify it?
And what are the considerations on which Supreme Court decides this question; necessity! Necessity in the realm of Supreme Court is of two dimensions. One, whether circumstances were of such a nature that imposition of martial law “had become a necessity?” And second, if martial law is going to exist regardless of the fact whether Supreme Court legalizes it or not, would it be expedient to declare it illegal on the basis of some legal doctrine, essentially rap up the entire legal structure of the state and leave the people at the mercy of martial law courts, or, to hit a compromise, legalize the martial law and retain the judicial structure ensuring whatever rights can still be ensured to the people?
Can Supreme Court afford to sacrifice the nation at the altar of principles? Would it be wise to do so? That is the question!