Parliament and necessity

The key question before the special court that handed down the death sentence to Pervez Musharraf for high treason under Article 6 of the constitution was whether the circumstances had warranted the proclamation of the emergency on November 3, 2007. The split verdict answers the question in the negative.

An extra-constitutional measure can be justified only by invoking the doctrine of necessity – which the judiciary did, and which parliament duly endorsed, in the past on quite a few occasions. By declaring Musharraf guilty of high treason, the special court has set aside the controversial 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 (1881-1973) argued that an action or an event acquires it 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 for granted, as there’s no higher norm from which it can be derived.

Thus being the source of other legal norms, the fundamental legal norm itself can’t rest on legal validity. The only basis of its validity is that it is actually followed in a given population (efficacy as Kelsen called it). From the grundnorm followed Kelsen’s view of revolutionary legality. Since the principle of legitimacy is grounded in the grundnorm, a revolution or coup, 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.

In Pakistan, the doctrine of necessity was first invoked by the apex court when in the wake of the dismissal of the First Constituent Assembly in 1954 it ruled that in the absence of the legislature and on the touchstone of state necessity, the governor-general could temporarily act in legislative capacity, although he was not authorized to do so by the basic law of the land.

Quoting Oliver Cromwell, the man who abolished British monarchy in the 17th century – and its absolute verity once and for all – and who to date remains a highly controversial figure not only in England but across the world, the court 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.”

Subsequently, the doctrine of necessity was invoked by the court to legitimize coups in 1958, 1977, and 1999. The pith of the judgments on the three occasions is that a successful revolution or coup d’etat is an internationally recognized method of changing a constitution; and that if a situation arises for which the constitution does not provide any solution, an extra-constitutional action is justified.

The November 3, 2007 proclamation of emergency didn’t upset the entire applecart of democracy. The federal and provincial legislatures continued working. Likewise, the prime minister, chief ministers and their cabinets remained in office. The only casualty was a large number of members of the superior judiciary, who were shown the door. However, the action was extra-constitutional, because judges can only be removed on the recommendation of the Supreme Judicial Council as per Article 209 of the constitution.

By contrast, the October 12, 1999 coup, also staged by Gen Musharraf, threw overboard the entire democratic apparatus. But he wasn’t prosecuted for that. And that wasn’t the first occasion when parliament put its seal on subversion of the constitution. Earlier, the Eighth Amendment enacted in 1985 substituted Article 270-A of the constitution and provided legitimacy to the July 5, 1977 coup as well as all subsequent actions taken and orders passed by the then military regime.

Both the Eighth and Seventeenth Amendments explicitly ousted the jurisdiction of the courts from looking into the validity of any law or order made by the military government. Each amendment thus represented total surrender to the “political realities” of the day.

It’s said, and rightly so, that both the Eighth and Seventeenth Amendments were passed as a quid pro quo for resumption of the democratic process. So what was wrong with either? The answer is that no constitution provides for its subversion. Therefore, any order or law which legitimizes the abrogation or subversion of the fundamental law of the land fails to meet the legitimacy test. Even parliament is not competent to legislate contrary to the constitution.

The only way to defend the Eighth and Seventeenth Amendments is to argue that each of them was prompted by an extraordinary situation. In normal circumstances, parliament would never enact such legislation. 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 such legislation as the Eighth and Seventeenth Amendments

Article 6 is an innovation of the 1973 Constitution. The previous two constitutions did not contain any such provision. With the painful memory of the abrogation of the constitution twice (in 1958 and 1969), the authors of the 1973 Constitution believed that provision of a constitutional safeguard against abrogation or subversion of the constitution would ensure preservation of the constitution order. However, subsequent events proved that such a view was unwarranted.

The original text of Article 6 consisted of three clauses. Clause (1) stated: “Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.” Clause (2) expanded the definition of high treason by stating that “Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.” Clause (3) enjoined upon parliament to make a law to provide for punishment of a person found guilty of high treason. Accordingly, the High Treason (Punishment) Act, 1973 provides that high treason is punishable with death penalty or life imprisonment. It is under this act that Gen Musharraf has been sentenced to death.

The 18th Amendment passed in 2010 altered the text of Article 6. The amended Clause (1) reads: “Any person who abrogates, subverts, suspends or holds in abeyance or attempts or conspires to abrogate, subvert, suspend or hold in abeyance the constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.” Clause (2) reads: “Any person aiding or abetting or collaborating the acts mentioned in clause (1) shall likewise be guilty of high treason. The new Clause 2(A) reads: “An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a high court.” Clause (3) stays the same.

Thus the amended Clause (1) of Article 6 broadens the scope of high treason by making the suspension of the constitution equivalent to its abrogation or subversion. Under the amended Clause (2), members of the judiciary have been barred from validating abrogation, suspension or subversion of the constitution.

In the wisdom of the authors of the 18th Amendment, incorporation of such provisions would constitute a stronger deterrence against any attempt to tinker with the fundamental law of the land. However, the amended Article 6 doesn’t embody any stricture against legitimization of unconstitutional acts by parliament, which, as stated above, has been done at least twice. This is a notable omission, as rule of law should apply to all institutions, not least the one that makes laws. Parliament may be supreme but it isn’t above the law.

Email: hussainhzaidi@gmail.com

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