Partners in necessity

Nawaz Sharif’s recent opprobrious remarks against the judiciary invoking the doctrine of necessity from time to time to validate extra-constitutional actions are understandable. However, the former prime minister spoke only the half-truth. It is not only the judiciary but parliament as well that has made use of the infamous doctrine.

The classical exposition of the doctrine of necessity was made by 13th century English jurist Henry de Bracton, who stated: “that which is otherwise not lawful is made lawful by necessity.” In modern times, Austrian jurist Hans Kelsen argued that an action or an event acquires its legal-normative meaning by another higher legal norm, and so on, until we reach the basic norm or grundnorm (such as the state constitution), the validity of which has to be taken as a presupposition as there is no higher norm from which it can be derived.

Thus, being the source of other legal norms, the fundamental legal norm itself cannot rest on legal validity. The only basis of its validity is that it is actually followed by a given population (efficacy as Kelsen called it). From the grundnorm followed Kelsen’s view of revolutionary legality. Since the principle of legitimacy is based in the grundnorm, a revolution or coup d’état, which sets aside the basic norm, denudes the entire legal order of its validity. A successful or efficacious revolution, thus, puts in place a new grundnorm from which the entire legal order must derive its legitimacy.

The doctrine of necessity has been invoked in defence of a forcible regime change as well as extra-constitutional actions taken by the government in ‘extraordinary’ circumstances in several post-colonial societies. At times, it has also been used to justify the usurpation by one organ of the government of the powers of another, such as when the executive usurps the authority of the legislature.

In Pakistan, the doctrine of necessity was first invoked by the apex court – then named the Federal Court – in 1955. In 1954, the First Constituent Assembly, which also acted as the federal legislature, was sacked by the governor-general. The court upheld the dismissal on purely technical grounds. The following year, on a reference from the government, the court ruled that in the absence of the legislature and the touchstone of state necessity, the governor-general could temporarily act in a legislative capacity, although he was not authorised to do so by the Government of India Act, 1935 read with the Indian Independence Act, 1947, which together served as the constitution of Pakistan (PLD 1955 FC 435).

Quoting Oliver Cromwell, the Federal Court headed by Justice Munir observed that, “[i]f nothing should be done, but what is according to law the throat of the nation might be cut while we send for someone to make the law.”

In October 1958, the 1956 constitution was abrogated and a countrywide martial law was declared. The entire administrative and legislative machinery was taken over by the chief martial law administrator through the Laws (Continuation in Force) Order, 1958. The apex court was called upon to adjudicate on the legitimacy of the new regime in what is known as ‘State versus Dosso and Others’. The court, again headed by Justice Munir and drawing inspiration from Hans Kelsen, ruled that a successful revolution or coup d’état was an internationally recognised method of changing a constitution. Hence, the Laws (Continuation in Force) Order 1958 constituted the new legal regime from which all legal instruments and institutions, including courts, derived their validity and legitimacy.

The judicial verdict had far-reaching implications, the most significant being that success was the only test of the legitimacy of a military coup and no judicial decision could make it illegitimate. Another implication was that the courts derived their authority from the new legal regime put in place by the CMLA and were, therefore, bound to uphold the supremacy of that regime.

The decision in the Dosso case received sharp criticism from the apex court itself in ‘Asma Jilani versus Government of the Punjab’. The court maintained that it was difficult to appreciate under what authority martial law could be proclaimed. By itself a military coup or a legal regime put in place by a military ruler was not legitimate. Rather they acquired legitimacy only after courts recognised them as de jure.

Be that as it may, in ‘Begum Nusrat Bhutto versus the Chief of Army Staff and Federation of Pakistan’, the Supreme Court went back to the doctrine of necessity and legalised the July 5, 1977 military coup of General Ziaul Haq on the basis of state necessity and welfare of the people. The court observed, that in the wake of the political crisis that erupted after the 1977 elections, a situation had arisen for which the constitution did not provide any solution. As the welfare of the people and safety of the state were in imminent danger, the army’s takeover was justified and the army chief could not be termed a usurper.

Similar reasoning was used by the court when it validated the October 12, 1999, coup in ‘Syed Zafar Ali Shah and Others versus General Pervez Musharraf’. The court also empowered General Musharraf to amend the constitution within certain limits.

Has only the judiciary made use of the doctrine of necessity? Certainly not. Parliament has also done this on quite a few occasions. The first crucial instance was the passage of the 8th Amendment to the constitution. In 1985, general elections were held and the democratic process revived after eight years. However, the martial law was still in force. The 8th Amendment enacted by the new parliament substituted Article 270-A of the constitution, which provided legitimacy to the July 5, 1977 coup as well as all subsequent actions taken, and orders passed by the military regime. Not only that, the amendment also made substantial changes to the constitution, the insertion of the infamous Article 58-2b for instance, which had the effect of altering its basic character – from parliamentary to quasi-presidential.

The 17th Amendment passed in 2003, had similar substance and context. By substituting Article 270AA of the constitution, parliament put its seal on the October 1999 proclamation of emergency by General Musharraf, and all subsequent orders and ordinances passed by him as either the chief executive or the president. Like the 8th Amendment, the 17th Amendment explicitly ousted the courts from looking into the validity of any law or order made by the military government. Each amendment represented a total surrender to the ‘political realities’ of the day.

It is said, and rightly so, that both the 8th and the 17th amendments were passed as quid pro quo for resumption of the democratic process. So what was wrong with either? The answer is that no constitution provides for its own subversion. Therefore, any order or law that legitimises the abrogation or suspension of the fundamental law of the land fails to meet the test of legitimacy. Even parliament is not allowed to legislate contrary to the constitution. This is logical, because all persons and institutions derive their powers from the constitution, and the only test of their actions is their conformity to the constitution.

The only way to defend the two amendments is to argue that each of them was prompted by an extraordinary situation. In a normal situation, parliament would never enact such legislations. But implicit in such reasoning is the view that necessity makes lawful what is otherwise unlawful. It follows that the doctrine of necessity is the only justification for legislations such as the 8th and 17th amendments

Therefore, if it is a sin to use the doctrine of necessity to defend or legitimise an unconstitutional act, whosever committed the sin deserves to be censured. It is not fair to point fingers at only one institution.

The writer is a freelancecontributor.

Email: hussainhzaidi@gmail.com