Judging the 'Doctrine of Necessity': Lessons from Pakistan
M Jashim Ali Chowdhury
Published in the New Nation, Law and Justice, August 9, 2008
Avaialable online http://nation.ittefaq.com/issues/2008/08/09/news0428.htm
(Earlier this article was published in the 60 DLR (2008) July Issue, Journal Section at pp. 25-28)
Article 7 of the Constitution of the People's Republic of Bangladesh embodies what is known as the Doctrine of 'Constitutional Supremacy'. It is the declaration that the people are the repository of all powers and their exercise on behalf of the people shall be effected only under, and by the authority of, the Constitution (Article 7(I)]. The Constitution is the solemn expression of the will of the people, the supreme law of the Republic, and if any other law inconsistent with this Constitution shall be void to the extent of the inconsistency (Article 7(2)].
Unfortunately, in Bangladesh we could not follow the dictum of Article 7 always, whether willingly or unwillingly. The Constitution was manipulated and tailored to suit the ruler who happens to be on [he throne. It is aptly pointed out by Mr Justice Habibur Rahman that the Constitution has experienced evulsions and kinds of reformation in situ. Far reaching and radical changes had been introduced in the Constitution both during the time when it was functioning and during the time when it is not allowed to function." [Barrister Amirul Islam, "Status of an usurper; a challenge to the Constitutional Supremacy and Constitutional Continuity in Bangladesh", Chittagong University Journal of Law, Vol. 2 1997 pp .. 1-30 at p4]
Now in Bangladesh we are experiencing a regime the constitutional status of which is not clear at least beyond all reasonable shadow of doubt. It has been termed as a 'government of necessity'. Yet to some others it is an extra-constitutional, if not unconstitutional government. Gross and reckless violation of the Constitution by the Iajuddin Government from the very beginning of its life led the nation to January 11 Government. Burdened with the herculean job of politico-social reform the government had to take some drastic measures which are claimed by some not to be within its constitutional mandate. The plea of necessity has been emphasised strongly in response. It is in this context that 1 feel interested to review the existing literature on the Doctrine of Necessity basically with reference to Pakistan.
Doctrine of Necessity as applied by courts
The doctrine of state necessity had furnished common law courts with the "framework to validate extra-constitutional acts of lawful regimes. It has been frequently used by courts during the American Civil War in a series of cases e.g., Texas vs While 14 US (7 Wall) 700 (1868), Horn vs Lockhart 84 US (17 Wall) 570 (J 873): Thorington vs Smith 75 US (8 Wall) I (1868).
The Supreme Court of Pakistan started using the doctrine to uphold unconstitutional usurpation of power.
In Nusrat Bhutlo vs Chief of Army Staff, [1977 PLD (SC) 657) the Court examined the "total milieu" of the circumstances in which the extra-constitutional assumption of power occurred to determine the new regime's validity. Quoting extensively from General Zia-ul Haq's speech, the Court highlighted the general's professed commitment to hold elections and restore democracy at an early date. Before the decision the Army declared an indefinite postponement of the elections originally scheduled for October, 1977, in order to initiate and complete a process of accountability of the deposed regime for alleged abuse of power. This postponement did not dilute the then Chief Justice's confidence in the regimes commitment to restore democratic rule, and he legalised the accountability process by terming it necessary.
In Malik Ghulam Jilani vs Province of Punjab {PLD 1979 Lahore 564J the appointment of General Zia as President of Pakistan was called into question. It was held by the Lahore High Court that the appointment promoted the good of the people and was valid. At page 586 of the report it was held as follows:
"The imposition of Martial Law ………stands validated on
the doctrine of necessity and ttttt this principle would apply to the appointment of President also for which, in the present situation, there is no guidance in the Constitution. Resort to extra-constitutional measures is not only justified but is necessary."
In Zafar Ali Shah vs General Parvez Musharraf (PLD 2000 (SC) 869] the Pakistani Supreme Court again noted, "There was no remedy provided in the Constitution to meet the situation like the present one with which the country was confronted, therefore, constitutional deviation made by the Chief of the Army Staff, General Pervez Musharraf for the welfare of the people rather than abrogating the Constitution or imposing Martial Law by means of an extra constitutional measure is validated for a transitional period on ground of State necessity and on the principle confidence in the regime's commitment to restore democratic rule, and he legalised the accountability process by terming it necessary.
In Malik Ghulam Jilani vs Province of Punjab PLD 1979 Lahore 564J the appointment of General Zia as President of Pakistan was called into question. It was held by the Lahore High Court that the appointment promoted the good of the people and was valid. At page 586 of the report it was held as follows:
"The imposition of Martial Law ……..stands validated on the doctrine of necessity and ttttt this principle would apply to the appointment of President also for which, in the present situation, there is no guidance in the Constitution. Resort to extra-constitutional measures is not only justified but is necessary."
In Zafar Ali Shah vs General Parvez Musharraf (PLD 2000 (SC) 869] the Pakistani Supreme Court again noted, "There was no remedy provided in the Constitution to meet the situation like the present one with which the. country was confronted, therefore, constitutional deviation made by the Chief of the Army Staff, General Pervez Musharraf for the welfare of the people rather than abrogating the Constitution or. imposing Martial Law by means of an extra constitutional measure is validated for a transitional period on ground of State necessity and on the principle that it is in public interest to accord legal recognition to the present regime with a view to achieving his declared objectives and that it is in the interest of the Community that order be preserved."
The legality of any extra-constitutional government has not been considered in Bangladesh until the High Court Division ruled on the 29th of August, 2005 that the 5th and 7th Amendments of the Bangladesh Constitution was illegal, an assumption of powers by Moshta que, Sayem, Zia and Ershad are un lawful. The judges said 'the violation of the Constitution was a gray legal wrong and remains so for a time to come. it cannot be legitimised.' The court, however, observed that due to the necessity of t e state, 'such a legal wrong can e condoned In certain circumstances'.
Scope of 'Necessity'
There is no fixed standard of determining necessity. Necessity has been claimed to prevail when ever and wherever it seemed convenient. Pakistani Courts invoked plea of necessity even to validate any 'work towards the achievement of the declared objectives' of a de facto regime. After the decision in Begum Nusrat Bhutto's case, Mr Justice Maulvi Mushtaq Hussain, Acting Chief Justice of the Lahore High Court was also appointed as the Acting Chief Election Commissioner. The appointment was challenged in the Supreme Court of Pakistan in Zulfiqar Ali Bhutto vs State (PLD 1978 SC 40]. The Court observed as follows:
"The reason underlying tttt is that once an 'extra Constitutional action or intervention is validated on the ground of State or civil necessity, then, as a logical corollary it follows that the new Regime or Administration must be permitted, in the public interest, not only to run the day-to-day affairs of the country, but also to work towards the achievement of the objectives on the basis of which its intervention has earned validation."
However, in Asma Jilani relying upon Lord Pearce's dissent in the Privy Council decision in Madzimbamutu the Court pronounced a catalogue of four independent grounds of "condonation" of acts of an illegal usurper regime; (I) all transactions which are past and closed, for, {sic] no useful purpose can be served by reopening them, (2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State. [Asma Jilani Asma Ji/ani vs Government of Punjab. 1972 PLD (SC) at 206]
Who determines 'necessity'?
The burden of determining necessity being a question of fact primarily resides with the executive. This has been the case as is shown historically. Very often it is shown to be based on mere subjective satisfaction and sweet will of a usurper. Usurper's personal appraisal of the situation led him to believe in the necessity of extra-constitutionalism. From Iskander Mirza to Pervez Musharraf, the excuse was more or less the same-"It is said that the Constitution is sacred. But more sacred than the Constitution or anything else is the country and welfare and happiness of its people." [Herbert Feldman, Revolution in Pakistan: A Study of the Martial Law Administration 214-15 (1967) Let us take the case of Pervez Musharraf.
* On 12th October 1999, General Pervez Musharraf, Chief of Anny Staff and Chairman, Joint Chiefs of Staff Committee, through an extra-constitutional measure took over the government and the affairs of the country.
* On the 20th of June, 2001, the Chief Executive issued Chief Executive's Order No. 3 of 2001 and the Preamble to the said Order read:
"Whereas it is expedient to provide for succession to the office of the President of the Islamic Republic of Pakistan and for matters connected therewith or ancillary thereto; Now, therefore, t.. .the Chief Executive of the Islamic Republic of Pakistan is pleased to make and promulgate the said Order".
* On 9th April 2002, the Chief Executive and the President of Pakistan issued Chief Executive's Order No. 12 of 2002. The Preamble to the Referendum Order, inter alia, provides as: under.
It is imperative to consolidate the measures taken by the Chief Executive of Pakistan for the reconstruction of the institution of state for establishing genuine and sustainable democracy and it is in the supreme national interest to obtain a democratic mandate from the people of Pakistan through referendum for General Pervez Musharraf to continue to be the President of Pakistan."
Musharraf took over the charge of the government since "at that juncture the institutions of State stood seriously weakened and the democratic and moral authority of the government of the day stood gravely eroded.' He dismissed his President because he thought it 'convenient' and so he was 'pleased' to take the charge of the President until his successor enters upon the office (Nobody knows when his successor will enter the office). The Zafar Ali Shah court thought it necessary to allow Musharraf three years to return to democracy. But he thought it more necessary to continue in power to return to 'genuine and sustainable democracy'. Truly, 'necessity knows no bounds'.
Should the Judiciary have a say in this regard?
There are opposing views regarding this.
The first proposition relies basically on the coercive aspect of law. Court should not say anything about an alleged necessity as the Court does not possess the necessary coercive mechanism to enforce its appraisal. Moreover, there is inherent danger in daring to explore such adventure during a dictator's reign as is shown in Nusrat Bhutto. In Nusrat Bhutto, the court observed that the power of judicial review was available to it to examine the legality or otherwise of the actions of the government, and particularly the· Court would also see whether the necessity continued to exist or not. The response to this finding was that Provisional Constitution Order, 1981 was promulgated ousting the power and jurisdiction of the Superior Courts to judicially review actions of the Martial Law regime.
On the other hand, some strongly believe that a de facto regime cannot be given de jure status through any constitutional engineering [Barrister Amirul Islam, op cit at p. 16]. To them in a constitutional democracy, the Supreme Court is the guardian not only of the Constitution, but also of constitutional ethics and social values:
This view emphasises on "moral reading" of the Constitution rather than on mere constitutional textualism. (Ridwanul Hoque, "On coup d'etat, constitutionalism, and the need to break the subtle bondage with alien legal thought A reply to Omar and Hossain", published in the Daily Star, Law and Our Rights, October 29. 2005]
Yet some others suggest the court to follow a middle course. They strongly suggest that this being a 'political question' should be out of the court's purview.
They believe that "the Court will, thus, travel unwittingly into the political arena and subject itself more readily to the charges of encroaching upon policy making. The 'political thicket' objection sticks more easily in such circumstances. [Farooq Ahmed Khan Leghari vs Pakistan, PLD 1999 (SC) 57]
Again, designation of this as non-justiciable political question will insulate the courts from turbulent politics, deny the usurpers judicially pronounced validity and legitimacy, and facilitate the survival of the courts and the rule of law. (Mahmud, Tayyab, "Jurisprudence of Successful Treason : Coup d'etat & Common Law", Communternational Law Journal, Vol. 27, (1994) at p. 53].
The Constitution is what people put in it. Any action under the label of Necessity can never be legitimate if it makes its way only through a series of extra-constitutional measures against the will of the people. Governments whether transient, extra-constitutional or unconstitutional are always subject to judicial and popular judgment. To quote Dr. Farooq Hasan (Counsel for the petitioner in Qazi Hussain Ahmed vs General Pervez Musharraf, Constitution Petition No. /5 of 2002). 'its actions, whether executive or legislative, are always capable of being tested qua or de hors the Constitution. It has a fiduciary relationship in the discharge of functions of the State and no court of equity or of law can allow a trustee to gobble up the property of the trust and use it for his own benefit on fake and flimsy pretexts.' If the principle of 'Salus populi suprema lex' can provide legitimacy, it can take it away.
Now in Bangladesh we are experiencing a regime the constitutional status of which is not clear at least beyond all reasonable shadow of doubt. It has been termed as a 'government of necessity'. Yet to some others it is an extra-constitutional, if not unconstitutional government. Gross and reckless violation of the Constitution by the Iajuddin Government from the very beginning of its life led the nation to January 11 Government. Burdened with the herculean job of politico-social reform the government had to take some drastic measures which are claimed by some not to be within its constitutional mandate. The plea of necessity has been emphasised strongly in response. It is in this context that 1 feel interested to review the existing literature on the Doctrine of Necessity basically with reference to Pakistan.
Doctrine of Necessity as applied by courts
The doctrine of state necessity had furnished common law courts with the "framework to validate extra-constitutional acts of lawful regimes. It has been frequently used by courts during the American Civil War in a series of cases e.g., Texas vs While 14 US (7 Wall) 700 (1868), Horn vs Lockhart 84 US (17 Wall) 570 (J 873): Thorington vs Smith 75 US (8 Wall) I (1868).
The Supreme Court of Pakistan started using the doctrine to uphold unconstitutional usurpation of power.
In Nusrat Bhutlo vs Chief of Army Staff, [1977 PLD (SC) 657) the Court examined the "total milieu" of the circumstances in which the extra-constitutional assumption of power occurred to determine the new regime's validity. Quoting extensively from General Zia-ul Haq's speech, the Court highlighted the general's professed commitment to hold elections and restore democracy at an early date. Before the decision the Army declared an indefinite postponement of the elections originally scheduled for October, 1977, in order to initiate and complete a process of accountability of the deposed regime for alleged abuse of power. This postponement did not dilute the then Chief Justice's confidence in the regimes commitment to restore democratic rule, and he legalised the accountability process by terming it necessary.
In Malik Ghulam Jilani vs Province of Punjab {PLD 1979 Lahore 564J the appointment of General Zia as President of Pakistan was called into question. It was held by the Lahore High Court that the appointment promoted the good of the people and was valid. At page 586 of the report it was held as follows:
"The imposition of Martial Law ………stands validated on
the doctrine of necessity and ttttt this principle would apply to the appointment of President also for which, in the present situation, there is no guidance in the Constitution. Resort to extra-constitutional measures is not only justified but is necessary."
In Zafar Ali Shah vs General Parvez Musharraf (PLD 2000 (SC) 869] the Pakistani Supreme Court again noted, "There was no remedy provided in the Constitution to meet the situation like the present one with which the country was confronted, therefore, constitutional deviation made by the Chief of the Army Staff, General Pervez Musharraf for the welfare of the people rather than abrogating the Constitution or imposing Martial Law by means of an extra constitutional measure is validated for a transitional period on ground of State necessity and on the principle confidence in the regime's commitment to restore democratic rule, and he legalised the accountability process by terming it necessary.
In Malik Ghulam Jilani vs Province of Punjab PLD 1979 Lahore 564J the appointment of General Zia as President of Pakistan was called into question. It was held by the Lahore High Court that the appointment promoted the good of the people and was valid. At page 586 of the report it was held as follows:
"The imposition of Martial Law ……..stands validated on the doctrine of necessity and ttttt this principle would apply to the appointment of President also for which, in the present situation, there is no guidance in the Constitution. Resort to extra-constitutional measures is not only justified but is necessary."
In Zafar Ali Shah vs General Parvez Musharraf (PLD 2000 (SC) 869] the Pakistani Supreme Court again noted, "There was no remedy provided in the Constitution to meet the situation like the present one with which the. country was confronted, therefore, constitutional deviation made by the Chief of the Army Staff, General Pervez Musharraf for the welfare of the people rather than abrogating the Constitution or. imposing Martial Law by means of an extra constitutional measure is validated for a transitional period on ground of State necessity and on the principle that it is in public interest to accord legal recognition to the present regime with a view to achieving his declared objectives and that it is in the interest of the Community that order be preserved."
The legality of any extra-constitutional government has not been considered in Bangladesh until the High Court Division ruled on the 29th of August, 2005 that the 5th and 7th Amendments of the Bangladesh Constitution was illegal, an assumption of powers by Moshta que, Sayem, Zia and Ershad are un lawful. The judges said 'the violation of the Constitution was a gray legal wrong and remains so for a time to come. it cannot be legitimised.' The court, however, observed that due to the necessity of t e state, 'such a legal wrong can e condoned In certain circumstances'.
Scope of 'Necessity'
There is no fixed standard of determining necessity. Necessity has been claimed to prevail when ever and wherever it seemed convenient. Pakistani Courts invoked plea of necessity even to validate any 'work towards the achievement of the declared objectives' of a de facto regime. After the decision in Begum Nusrat Bhutto's case, Mr Justice Maulvi Mushtaq Hussain, Acting Chief Justice of the Lahore High Court was also appointed as the Acting Chief Election Commissioner. The appointment was challenged in the Supreme Court of Pakistan in Zulfiqar Ali Bhutto vs State (PLD 1978 SC 40]. The Court observed as follows:
"The reason underlying tttt is that once an 'extra Constitutional action or intervention is validated on the ground of State or civil necessity, then, as a logical corollary it follows that the new Regime or Administration must be permitted, in the public interest, not only to run the day-to-day affairs of the country, but also to work towards the achievement of the objectives on the basis of which its intervention has earned validation."
However, in Asma Jilani relying upon Lord Pearce's dissent in the Privy Council decision in Madzimbamutu the Court pronounced a catalogue of four independent grounds of "condonation" of acts of an illegal usurper regime; (I) all transactions which are past and closed, for, {sic] no useful purpose can be served by reopening them, (2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State. [Asma Jilani Asma Ji/ani vs Government of Punjab. 1972 PLD (SC) at 206]
Who determines 'necessity'?
The burden of determining necessity being a question of fact primarily resides with the executive. This has been the case as is shown historically. Very often it is shown to be based on mere subjective satisfaction and sweet will of a usurper. Usurper's personal appraisal of the situation led him to believe in the necessity of extra-constitutionalism. From Iskander Mirza to Pervez Musharraf, the excuse was more or less the same-"It is said that the Constitution is sacred. But more sacred than the Constitution or anything else is the country and welfare and happiness of its people." [Herbert Feldman, Revolution in Pakistan: A Study of the Martial Law Administration 214-15 (1967) Let us take the case of Pervez Musharraf.
* On 12th October 1999, General Pervez Musharraf, Chief of Anny Staff and Chairman, Joint Chiefs of Staff Committee, through an extra-constitutional measure took over the government and the affairs of the country.
* On the 20th of June, 2001, the Chief Executive issued Chief Executive's Order No. 3 of 2001 and the Preamble to the said Order read:
"Whereas it is expedient to provide for succession to the office of the President of the Islamic Republic of Pakistan and for matters connected therewith or ancillary thereto; Now, therefore, t.. .the Chief Executive of the Islamic Republic of Pakistan is pleased to make and promulgate the said Order".
* On 9th April 2002, the Chief Executive and the President of Pakistan issued Chief Executive's Order No. 12 of 2002. The Preamble to the Referendum Order, inter alia, provides as: under.
It is imperative to consolidate the measures taken by the Chief Executive of Pakistan for the reconstruction of the institution of state for establishing genuine and sustainable democracy and it is in the supreme national interest to obtain a democratic mandate from the people of Pakistan through referendum for General Pervez Musharraf to continue to be the President of Pakistan."
Musharraf took over the charge of the government since "at that juncture the institutions of State stood seriously weakened and the democratic and moral authority of the government of the day stood gravely eroded.' He dismissed his President because he thought it 'convenient' and so he was 'pleased' to take the charge of the President until his successor enters upon the office (Nobody knows when his successor will enter the office). The Zafar Ali Shah court thought it necessary to allow Musharraf three years to return to democracy. But he thought it more necessary to continue in power to return to 'genuine and sustainable democracy'. Truly, 'necessity knows no bounds'.
Should the Judiciary have a say in this regard?
There are opposing views regarding this.
The first proposition relies basically on the coercive aspect of law. Court should not say anything about an alleged necessity as the Court does not possess the necessary coercive mechanism to enforce its appraisal. Moreover, there is inherent danger in daring to explore such adventure during a dictator's reign as is shown in Nusrat Bhutto. In Nusrat Bhutto, the court observed that the power of judicial review was available to it to examine the legality or otherwise of the actions of the government, and particularly the· Court would also see whether the necessity continued to exist or not. The response to this finding was that Provisional Constitution Order, 1981 was promulgated ousting the power and jurisdiction of the Superior Courts to judicially review actions of the Martial Law regime.
On the other hand, some strongly believe that a de facto regime cannot be given de jure status through any constitutional engineering [Barrister Amirul Islam, op cit at p. 16]. To them in a constitutional democracy, the Supreme Court is the guardian not only of the Constitution, but also of constitutional ethics and social values:
This view emphasises on "moral reading" of the Constitution rather than on mere constitutional textualism. (Ridwanul Hoque, "On coup d'etat, constitutionalism, and the need to break the subtle bondage with alien legal thought A reply to Omar and Hossain", published in the Daily Star, Law and Our Rights, October 29. 2005]
Yet some others suggest the court to follow a middle course. They strongly suggest that this being a 'political question' should be out of the court's purview.
They believe that "the Court will, thus, travel unwittingly into the political arena and subject itself more readily to the charges of encroaching upon policy making. The 'political thicket' objection sticks more easily in such circumstances. [Farooq Ahmed Khan Leghari vs Pakistan, PLD 1999 (SC) 57]
Again, designation of this as non-justiciable political question will insulate the courts from turbulent politics, deny the usurpers judicially pronounced validity and legitimacy, and facilitate the survival of the courts and the rule of law. (Mahmud, Tayyab, "Jurisprudence of Successful Treason : Coup d'etat & Common Law", Communternational Law Journal, Vol. 27, (1994) at p. 53].
The Constitution is what people put in it. Any action under the label of Necessity can never be legitimate if it makes its way only through a series of extra-constitutional measures against the will of the people. Governments whether transient, extra-constitutional or unconstitutional are always subject to judicial and popular judgment. To quote Dr. Farooq Hasan (Counsel for the petitioner in Qazi Hussain Ahmed vs General Pervez Musharraf, Constitution Petition No. /5 of 2002). 'its actions, whether executive or legislative, are always capable of being tested qua or de hors the Constitution. It has a fiduciary relationship in the discharge of functions of the State and no court of equity or of law can allow a trustee to gobble up the property of the trust and use it for his own benefit on fake and flimsy pretexts.' If the principle of 'Salus populi suprema lex' can provide legitimacy, it can take it away.
M. Jashim Ali Chowdhury is a Lecturer in the Department of Law, University of Information Technology and Sciences (UITS), Chittagong.
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