How The Supreme Court Of Pakistan Has Legitimized Every Military Coup Under The Doctrine Of Necessity

The Supreme Court of Pakistan has legitimized its decisions by applying the Doctrine of Necessity. The Doctrine of Necessity seeks to justify an extra constitutional authority to restore order^[1]. In basic terms it provides a justification for an otherwise illegal government conduct during a public emergency^[2]. The doctrine bridges the gap between what law allows the government to do and the governments actual response to an emergency^[3]. The use of the doctrine attaches legal respectability to an unquestionably illegal regime and gives a new government the appearance of constitutional propriety^[4].

The doctrine which is based on the works of jurist Henry De Bracton and later William Blackstone has never been used in the world anywhere as used in Pakistan. The Doctrine was introduced with the intent that its application shall be in a context of an independent judiciary and executive and legislature that is willing to abide by the Courts decisions^[5]. The purpose of the doctrine was never to legitimize a military autocracy being a justifiable alternative to a democratic elected polity. It was only to be used by the State facing grave and imminent peril^[6]. Its first appearance was in 1954 when the Governor General of Pakistan dismissed the Constituent Assembly on the ground that the Assembly did not represent the people of Pakistan. The said decision was legitimized by the then Chief Court of Pakistan by relying on the Doctrine of Necessity and that the well-being of the people was the supreme law.

The second time the Doctrine of Necessity was applied when the Supreme Court of Pakistan was called upon to adjudicate the constitutional legitimacy of the 1958 Martial Law regime introduced by General Ayub Khan^[7]. The Court yet again applied the Doctrine of Necessity and upheld the Laws (Continuation in Force) Order 1958 promulgated by the Military. The Court relied on the philosophy of Hans Kelsen and found that two elements establishment of new “Grundnorm” were satisfied and that the 1956 Constitution was no longer the governing instrument of Pakistan and that the will of the President was the legitimacy to every government act. The philosophy of Kelsen forms the basis of Courts decisions that the validity of the new regime must be measured by its effectiveness alone^[8]. It was held that where the revolution was successful it satisfies the test of efficacy and becomes a basic law creating fact.

However, in 1972, the Supreme Court of Pakistan gathered the judicial courage to declare the martial law imposed by General Yahya Khan as unconstitutional^[9]. The Court observed that it was difficult to appreciate under what authority martial law could be proclaimed. A regime put in place by a military ruler was not legitimate by itself and instead acquired legitimacy only when Courts recognize them as de jure^[10]. The Court renounced Kelsens doctrine of revolutionary legality. The Court observed that Kelsens attempt to justify the principle of effectiveness from the standpoint of International Law cannot be justified, for it assumes “the primacy of International Law over National Law.” And in doing so has overlooked that for purposes of International Law the legal person is the State and not the community and that in International Law there is no “legal order” as such. It must be noted that the Court did legitimacy to certain acts bases the principle that courts must validate certain necessary acts of a usurper because of lawful sovereign would want these acts to be done in the interest of preserving the state. The decision of the Supreme Court of Pakistan in 1972 did provide hope that in future the Constitution shall be respected and adhered to by the state and that the Court shall not succumb to dictates of the military regime, but that hope was short lived. The Doctrine of Necessity was going to make a mischievous comeback.

Just a few years after the decision in Asma Jillani Vs. Govt. of Punjab, the Court was all set to adjudicate another martial law imposed by General Zia-ul-Haq^[11]. The case was with respect to a petition challenging the detention of Zulfiqar Ali Bhutto and Ten other leaders of his party. General Zia had suspended the 1973 Constitution but was not abrogated. The reason for the Supreme Court to hold that the Constitution was not abrogated was because to maintain judicial review, the validity of the 1973 Constitution had to be upheld. If the Constitution were in abeyance, the Court shall have no constitutional right to justify its legal existence. The Prime Minister, Cabinet Ministers and Opposition Leaders were arrested¹² Despite General Zia's suspension of judicial review, the Supreme Court of Pakistan did consider the legitimacy of the new government. The Court upheld the Coup as lawful as the Constitution was still in force and that deviations from the Constitution were justified under the Doctrine of Necessity. The Court did not accept the argument that a Coup is legitimized solely by virtue of political success. Instead, the Court considered “total milieu” as the factor to determine the legitimacy of a coup. The Court observed that the Generals actions where “extra constitutional step, but obviously dictated by the highest considerations of State necessity and welfare of the people”. The fear of the Court to be disobedient to the orders of General Zia were so palpable that the Court had conducted orderly, ten – weeklong hearing.

The Coup led by General Parvez Musharraf in 1999 wherein he overthrew the democratically elected government of Nawaz Sharif. General Musharraf introduced the Provisional Constitutional Order (PCO) 1999. Under the Order, the Supreme Court of Pakistan, High Courts and other Court shall not have the powers to make any other order against the Chief Executive or any other person exercising jurisdiction under his authority. The Constitution was suspended and subject to the Orders of the Chief Executive, the Country was to be governed in accordance with the Constitution. The Order issued was in consonance with the Order issues by the General Zia Ul-Haq. However, the term “martial law” was omitted.

The Coup was also scrutinized by the Supreme Court of Pakistan yet again under the Doctrine of Necessity. The Supreme Court was constituted to hear the case. The bench hearing the case was of the view that the coup was in violation of the Constitution. It is pertinent to mention herein that the Provisional Constitutional Order was introduced after the Supreme Court was adjudicating the Coup. Under the Provisional Constitutional Order, the Chief Justice and other justices were asked to take oath under the Provisional Constitutional Order. However, the Chief Justice and nine other judges of the Supreme Court refused to take oath under the Provisional Constitutional Order. The newly reconstituted Supreme Court legitimized the Coup under the doctrine of necessity. But the Court gave Musharaff a 3-year deadline to restore constitutional democracy.

The Doctrine of Necessity has had its application not only to legitimize military takeovers in Pakistan but also in Grenada to validate the legal existence of a Court which was trying for murder the persons who had conducted a Coup against former leader, in Nigeria to legitimize the acting Vice President as the Acting President and in United Kingdom where it was used to legitimize the Northern Ireland Protocol changes. This indicates to the expansive interpretation that has occurred over time wherein the doctrine is used to legitimize acts which are not ordinarily legitimate. The actions of the Supreme Court of Pakistan indicate as to how a legal doctrine can be construed to quell democratic systems and support unelected autocracy.

The author is an Advocate at High Court Of Delhi. Views are personal.

[1] Doctrine of Necessity in Pakistan Law and its Interpretation by Pakistan Supreme Court. Knoji.com. 22^nd March 2018.