Essay on “Doctrine of Necessity” for CSS, PMS, Judiciary Examinations

This is an essay on “Doctrine of Necessity” for CSS, PMS, and Judiciary Examinations. The doctrine of necessity is a term used to describe the basis on which extraconstitutional actions by the administrative authority, which are designed to restore order or attain power on the pretext of stability, are found to be constitutional even if such an action would normally be deemed to be in contravention to established norms or conventions. It also includes the ability of a private person to violate a law without punishment where the violation of law was necessary to prevent even worse harm. So here is the complete essay on “Doctrine of necessity”.

Essay on “Doctrine of Necessity”

Constitutional crises in Pakistan have remained endemic and find roots in the electoral politics adopted by the Muslim League in the pre-1947 era. The confluence of competing but common interests amongst the elites has ultimately led to the creation of a doctored political system that has time and again manifested itself in preserving the status quo.

All military interventions in Pakistan have a distinction of getting legal/constitutional indemnity in two phases. First, the judiciary legalizes the intervention by invoking the ‘Doctrine of Necessity’ recognized not only in Islam and other religions of the world but also accepted by the eminent international jurists including Hugo Grotius, Chitty, and De Smith and some Superior Courts from a foreign jurisdiction to fill a political vacuum and bridge the gap’. This is followed by supposedly free and fair elections and an Act of Parliament that indemnifies the entire duration of the intervention to prolong the interests of the elites.

The political chronology of events apparently justifies this legal and constitutional process. First, there are political crises based on nepotism. corruption, damage to national interests, and swindling of the exchequer. Then follows a passionate appeal to save the federation before it tears at the seams: a military intervention celebrated on streets; a wishful agenda of reforms and finally the legal and constitutional fait accompli. By the time this cycle ends, constitutionalism is resigned to the backyard while the ‘Men on Horseback’ continues to patrol the society. It normally takes another decade for the action replay.

The doctrine of necessity is a phrase commonly used to refer to a controversial judgment in 1954 by Justice Muhammad Munir to validate Ghulam Mohammad, the Governor-General of Pakistan’s, use of non-constitutional emergency powers.

On October 24, 1954, Ghulam Mohammad, the Governor-General of Pakistan dissolved the Constituent Assembly and appointed a new Council of Ministers on the grounds that no longer represented the people of Pakistan. Stanley de Smith argues that the real reason for the dissolution was because Mohammad objected to the constitution the Assembly was about to adopt.

The President of the Constituent Assembly, Maulvi Tamizuddin, appealed to the Chief Court of Sind at Karachi to restrain the new Council of Ministers from implementing the dissolution and to determine the validity of the appointment of the new Council under Section 223-A of the constitution.

In response, members of the new Council of Ministers appealed to the court saying that it had no jurisdiction to approve the request of the President to overturn the dissolution and appointments. They argued that Section 223-A of the constitution had never been validly enacted into the Constitution because it was never approved of by the Governor-General, and therefore anything submitted under it was invalid.

The Chief Court of Sind ruled in favor of President Tamizuddin and held that the Governor-General’s approval was not needed when the Constituent Assembly was acting only as a Constituent Assembly and not as the Federal Legislature. The Federation of Pakistan and the new Council of Ministers then appealed to the court, the appeal was heard in March of 1955 (Federation of Pakistan v Moulvi Tamizuddin Khan).

In the appeal hearing under Chief Justice Muhammad Munir, the court decided that the Constituent Assembly functioned as the ‘Legislature of the Domain’ and that the Governor-General’s assent was necessary for all legislation to become law. Therefore, the Chief Court of Sind had no jurisdiction to overturn the Governor General’s dissolution and it was held as valid.

However, the ground on which the court found in favor of the Federation of Pakistan called into question the validity of all legislation passed by the Assembly, not to mention the unconstitutionality of the Assembly itself since 1950. In order to solve this problem, the Governor-General invoked Emergency Powers in order to retrospectively validate the Acts of the Constituent Assembly. An appeal was filed against the Governor-General for invoking emergency powers and the Chief Justice had to determine the constitutionality of invoking the Emergency Powers and whether the Governor-General could give his assent to legislation retroactively.

The Court held that in this case, the Governor-General could not invoke emergency powers because in doing so he validated certain laws that had been invalid because he had not assented to them previously. Justice Munir also ruled that constitutional legislation could not be validated by the Governor-General but had to be approved by the Legislature. The lack of a Constituent Assembly did not transfer the Legislature’s powers over to the Governor-General.

The Court was referred to for an opinion and on May 16, 1955, expressed:

  1. The Governor-General in certain circumstances had the power to dissolve the Constituent Assembly.
  2. The Governor-General has during the interim period the power ‘under the common law of civil or state necessity’ of retrospectively validating the laws listed in the Schedule to the Emergency Powers ordinance.
  3. The new Assembly (formed under the Constituent Convention Order 1955) would be valid and able to exercise all powers under the Indian Independence Act 1947.

In his verdict, Munir declared it was necessary to go beyond the constitution to what he claimed was the Common Law, to general legal maxims, and to English historical precedent. He relied on Bracton’s maxim ‘that which is otherwise not lawful is made lawful by necessity, and the Roman law maxim urged by Jennings, “the well-being of the people is the supreme law”.

The doctrine has been invoked in other Commonwealth jurisdictions. In a 1985 judgment, the Chief Just1ce of the High Court of Grenada invoked the doctrine of necessity to validate the legal existence of a court than trying to murder the persons who had conducted a coup against former leader Maurice Bishop. The court had been established under an unconstitutional “People’s Law” following the overthrow of the country’s constitution, which had subsequently been restored.

The defendants argued that the court before which they were being tried· had no legal existence under the restored constitution, and they were therefore being deprived of their constitutional right to a trial before a “Court established by law”. The High Court acknowledged that the lower court “had come into existence in an unconstitutional manner”, but “the doctrine of necessity validated its acts.” On this basis, the murder trials were allowed to proceed.

In 1958, in what is known as Dosso’s case, the Supreme Court ruling on the legality of General Ayub Khan’s usurpation of power, evolved a novel doctrine of revolutionary legality to legitimize the seizure of power. Chief Justice Munir said, “Where the revolution is successful it satisfies the test of efficacy and creates a basic law creating fact.” The court went on to hold that fundamental rights were unenforceable because of the military rul9’s ban on writs against the government. This case helped to legitimize military rule for more than a decade.

On April 1, 1969, General Yahya Khan declared martial law. In 1972, the supreme court in the Asma Jilani case disowned the test of revolutionary legality but held that recourse could be had to the doctrine of the necessity of the state, as ignoring the necessity would result in disastrous consequences to the body politic. General Zia’s military takeover was legitimized by the Pakistan Supreme Court in Begum Nusrat Bhutto’s case in 1977, with the court taking refuge in the doctrine of necessity.

In Z.A. Bhutto’s case in 1978, the supreme court declined judicial review as a logical corollary of the doctrine of necessity. Finally, the military takeover by General Musharraf on October 12, 1999, itself was again upheld by the supreme court in Syed Zafar Ali Shah’s case on the basis of the doctrine of state necessity, the court held that this military rule was on1y a constitutional deviation for a transitional period to enable the chief executive to achieve his declared objectives.

Against this background of a generally accommodating Pakistan judiciary, General Musharraf must have had compelling reasons to distrust Chief Justice Iftikhar Choudhary when he ordered his suspension in March 2007. This was a blunder even by the standards of the country’s military rulers. It galvanized the lawyers and divided civil society against him. In the process, the credibility of his plans to restore civilian rule was gravely undermined, both nationally and internationally.

When, in July, the Pakistan Supreme Court in a rare display of grit nullified Musharraf’s order suspending Chief Justice Iftikhar Chaudhary, the general seemed to acquiesce in it. He possibly hoped that his act of appeasement would create a favorable atmosphere for a verdict in his favor on the challenge mounted by a hostile community of lawyers to his election as president.

For a while, Musharraf had reason to be optimistic. No immediate action was taken by the supreme court on his defiance of the court’s order allowing Nawaz Sharif to return to Pakistan from his compulsory exile. A petition challenging the election commission’s acceptance of Musharraf’s nomination as president was rejected by the supreme court on technical grounds leading to strong criticism of the court by lawyers.

Musharraf’s election as president was allowed to be held without any order of the court stopping it while it continued to hear the petition against the general for three weeks, thereby suggesting that the election was a fait accompli. But early last week the court pulled up the Government for deporting Nawaz Sharif and defying its order. Court hearings and probably secret intelligence indicated that the majority of the court was likely to hold Musharraf’s election as president illegal. If this had happened, it would have irreversibly damaged his position and endangered his own safety after he ceased to hold power. Hence his Proclamation of Emergency to “safeguard” the nation against an activist judiciary.

The military coup of 1999 played the familiar script. It came in the midst of a public uproar against Nawaz Sharif and was welcomed by all political parties in the opposition. The Supreme Court legalized it through a ruling based on the argued merit of political turmoil and a distinctive reforms agenda of SEVEN POINTS.

This paper argues that the Spirit of Necessity arises out of a crisis and ends by creating environments that counter the causes that justified Necessity. Hence the judicial surveillance and responsibility of providing such a legal blanket does not end with a ruling (as the case in subject) but rather transcends into the future till such time the ends of NECESSITY are met. Sufficient corroborative and confirmatory material have been produced by the Federal Government in Support of the intervention by the Armed Forces through extra-constitutional measures.

The material consisting of newspaper clippings, writings, etc in support of the impugned intervention is relevant and has been taken into consideration as admissible material on the basis of which a person of ordinary prudence would conclude that the matters and events narrated therein did occur. The findings recorded herein are confined to the controversies involved in these cases alone.

That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity;

  1. That General Pervez Musharraf, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through Proclamation of emergency dated the 14th October 1999, followed by PCO 1 of 1999, whereby he has been described as Chief Executive, having validly assumed power by means of an extra-constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter namely:- All acts or legislative measures which are in accordance with, or could have been made under the 1973 constitution, including the power to amend it; All acts which tend to advance or promote the good of the people; All acts required to be done for the ordinary orderly running of the state; and all such measures as would establish .or lead to the establishment of the declared objectives of the Chief Executive
  2. That constitutional amendments by the Chief Executive can be resorted to only if the Constitution fails to provide a        solution for the attainment of his declared objectives and further that the power to amend the Constitution by virtue of        clause6 subclause (I) (a) ibid is controlled by sub-clause (b)(c) and (d) in the same clause
  3. That no amendment shall be made in the salient features of the Constitution i.e. independence of judiciary, federalism, parliamentary form of government blended with Islamic provisions.
  4. That Fundamental Rights provided in Part II, Chapter I of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19, and 24 as contemplated by Article 233 (I) of the Constitution, keeping in view the language of Article 10, 23 and 25 thereof
  5. That these acts, or any of them, may be performed or carried out by means of orders issued by the Chief Executive or through Ordinances on his advice.
  6. That the Superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of state necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent and may be exercised as theretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive/or any order issued by the Chief Executive or by any person or authority acting on his behalf.
  7. That the courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and activities done by the Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelled out from his speeches dated 13th and 17th October 1999, on the touchstone of State necessity but such orders made, proceedings taken and act done including the legislative measures, shall also be subject to judicial review by the superior courts.

This is not a case where the old legal order has been completely suppressed or destroyed, but merely a case of constitutional deviation for a transitional period so as to enable the Chief Executive to achieve his declared objectives.

The Supreme Court in 2007 validated the proclamation of Emergency and Provisional Constitutional Order (PCO) under the Doctrine of Necessity, saying that “when the constitution provided no remedy or satisfactory solution to an issue threatening national security, the doctrine could be invoked”. In its three-page verdict, the seven-member bench held that “terror attacks, suicide bombings, and kidnappings had rendered the situation in Pakistan very unstable, but that the government had been hampered by activist members of the judiciary”.

The theory of Doctrine of Necessity originated with one of the great legal theorists .of the··20th century, Hans Kelsen (1881-.1973), in his classical study Theory of Law and State (1949) which put forward the proposition that “a successful revolution is a law-creating fact”. Kelsen was Jewish and had migrated from Germany to the United States, where he had embraced Catholicism.

Ironically, his Doctrine of Necessity was not found to be as useful in the West as it came to be in the Third World where democracies were overthrown by Third World militaries. Had Kelsen lived today he would have agreed with the new Third World trend to condemn the Doctrine as a misinterpretation of his work. The last rejection came in Fiji, and the application of it this week in Pakistan has found no resonance in the world, particularly in the Commonwealth where Pakistan had itself proposed an “organizational condition” that has triggered its latest ouster.

Pakistan then turfed its back on·the Doctrine in 1972, in the Asma Jilani vs The State case, when Chief Justice Hamoodur Rahman, in considering General Ayub Khan’s action in handing over the presidency of Pakistan to the Armed ·Forces, asserted that General Ayub had no, such power and that, accordingly, the assumption of office by Agha Mohammed Yahya Khan as Chief Martial Law Administrator, and later as President. was unconstitutional, being “an act of usurpation”. In that case, the Court also considered the application of the Kelsen Doctrine. Justice Rahman expressed his disapproval with it in the following words:

“With the utmost respect, therefore, I would agree with the· criticism that the learned Chief Justice (Muhammad Munir) not only misapplied the doctrine of Hans Kelsen. but also fell into error that it was a generally accepted doctrine of modern jurisprudence. The principle enunciated by him is wholly unsustainable and I am duty-bound to say that it cannot be treated as good law either on the principle of stare decisis or even otherwise”.

The above verdict against martial law was delivered after the dictator had vanished and while the 1973 Constitution was being framed. It was a belated effort by the Supreme Court to re-establish its independence after years of subordination to authoritarianism under its own decisions. One should not miss the irony that lawyer Manzur Qadir, who had defended the Kelsen Doctrine under Ayub Khan, was now attacking it on behalf of his client, Altaf Gauhar; and the democratically elected government of Bhutto was defending the Yahya Khan regime it nad superseded.

Pakistan overturned Asma Jilani vs The State’s rejection of the Doctrine soon enough, in 1977. In the Nusrat Bhutto case, challenging General Zia’s coup, the court was once again under pressure to eat its words and revive Kelsen.

The “coup” of General Musharraf in 1999 was never regarded as full-fledged. coup. He did not begin his rule as a martial law administrator and did not install military courts that could award whipping sentences to the journalists. The Supreme Court that took oath under a PCO gave him a restricted charter of holding the elections in 2002, which he did. There was freedom of expression in the country as never before. As a part of this new spirit in Pakistan, there was judicial activism too at the apex level. What became “different” was the declaration of Emergency on November 3, which was unconstitutional for all practical purposes because of the PCO.

His past record – particularly his reneging on the promise to give up the uniform in 2004 – introduced a factor that aroused popular resentment. Now a revamped Supreme Court has revived the Doctrine of Necessity to enable a transition to democracy to take place after General Musharraf sacked the earlier supreme court in fear that it was about to overthrow him. We now await the moment when General Musharraf becomes Mr. Musharraf before November 31 as promised to the Supreme Court and as subsequently ordered by it.

History and the court both repeated themselves in 2000, when Zafar Ali Shah challenged the constitutionality of the October 12 military coup of the year before. At the time that General Musharraf took power, he appeared to have strong political backing. Still, when the chief justice was asked about the constitutionality of the coup, he said that any petition coming to the court would be decided on its merits. One day before the Supreme Court was due to make its decision, off he went to headquarters for a briefing.

The following day the full bench judgment not only upheld the coup but went so far as to give General Musharraf unlimited power to amend the constitution as he pleased. Yes, you guessed it: the doctrine of necessity was pulled out and shook around one more time. Some in Pakistan’s legal circles claim that this decision was literally written outside the court and handed to the judges to pronounce without even having had time to read it properly.

Pakistan’s poodle judiciary has been taught and learned its lessons well. On but a few occasions in the last half-century has the Supreme Court declined to use the doctrine of necessity, and even then the attendant circumstances have meant that its actions were meaningless.

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