By P.K.Balachandran
Colombo, April 11 (newsin.asia): Pakistan’s Supreme Court redeemed itself on Sunday when it refrained from applying the “Doctrine of Necessity” to legitimize Prime Minister Imran Khan’s act of getting the No Confidence Motion (NCM) against his government rejected by the Deputy Speaker on specious grounds, and having the National Assembly dissolved thereafter.
Imran Khan had used every trick in the book to dodge the NCM. He brazenly whipped up issues for which there were no solid grounds and used them to get the Deputy Speaker of the National Assembly to reject the NCM. He charged that the NCM was anti-national as it was a product of a US-inspired conspiracy to overthrow him for his “independent” foreign policy. He charged that a US State Department official, Donald Lu, had threatened to punish Pakistan if the NCM was defeated. Immediately after the NCM was rejected by the Deputy Speaker, Imran got the Pakistan President to dissolve the Assembly and order fresh elections.
The opposition took the matter to the Supreme Court which nullified both the dismissal of the NCM and the dissolution of the Assembly. Imran Khan’s government was defeated when voting on the NCM took place early on Sunday.
Credit is due to the opposition for the unity and sense of purpose it displayed, but it is the Supreme Court’s decision not to apply the ‘Doctrine of Necessity’ to keep the Imran regime going which played a greater role, a decisive role in fact. In too many cases in the past the country’s highest court had applied the ‘Doctrine of Necessity’ in high profile cases involving the government, on the plea that a change had taken place which could not be reversed.
In the present case, the court could well have said that the NCM need not be resurrected when the Assembly had already been dissolved and fresh elections were to be held in three months. The court could have said that people are sovereign, and therefore, they should decide on the issue.
But the court did not want to follow the beaten track and excuse the actions of the wielders of power on the basis of the pernicious ‘Doctrine of Necessity’. It used Article 58 (1) of the constitution which clearly says that a Prime Minister cannot advise the President to dissolve the National Assembly if a vote of no-confidence against him/her has been brought in the Assembly and had not been voted upon. By taking this line, the five-bench court headed by Chief Justice Umar Ata Bandial had made a clean break from the past.
Pro-Power Proclivities
The Pakistan Supreme Court has had a mixed record in its 75-year history. It has upheld the constitution in some cases and also legitimized the abrogation or suspension of the Constitution in other cases. It has bowed to the dominant political power of the day while defying it on occassion.
In 1954, Governor General Ghulam Mohammad dismissed the first Constituent Assembly which was drafting Pakistan’s first constitution. Moulvi Tamizuddin challenged this in the Sindh High Court. While this court upheld Tamizuddin’s case, the Federal Court, headed by Justice Mohammad Munir, reversed the decision.
In 1958, the imposition of Martial Law was challenged in the Federal Court. The court, again headed by Justice Munir, drew inspiration from Hans Kelsen’s ‘Doctrine of Necessity’ and held that “a successful revolution or coup d’etat is an internationally recognized method of changing a constitution.” Thanks to this interpretation, the military dictatorship of Gen. Ayub Khan became legal. Justice Munir’s decision, based on the ‘Doctrine of Necessity’ enabled the legitimization of subsequent military coups.
Doctrine of Necessity
According to Sri Lankan jurist, Dr. Jayampathy Wickramaratne, the ‘Doctrine of Necessity’ was first expounded in the 13th century by English jurist Bracton. Bracton stated “that which is otherwise not lawful is made lawful by necessity”. Glanville Williams described the “defense of necessity” as involving “a choice of the lesser evil.” The ‘Doctrine of Necessity’ is recognized in criminal law, but Dr. Wickramaratne wonders if it can be applied in constitutional law.
Its misuse could be seen in Pakistan. In Pakistan, judges tended to get intimidated by Martial Law regimes and ended up doing the latter’s bidding. Dr. Wickramaratne quoted frustrated Justice Dorab Patel who asked: “How do you expect five men alone, unsupported by anyone, to declare martial law unconstitutional?.” Giving sanction to actions of the Martial Law regimes became a recipe for survival in Pakistan.
However, the Pakistani judiciary redeemed itself in 1972. Justice Munir’s judgement came under criticism in the Supreme Court in 1972 in the Asma Jilani versus Govt. of Punjab case. The Supreme Court bench headed by Justice Hamoodur Rehman declared the Martial Law imposed by military dictator Gen. Yahya Khan as unconstitutional. Justice Hamoodur Rehman’s judgement spurred hope that Pakistani courts would not allow military takeovers any more.
But that hope was dashed in 1977 in the Begum Nusrat Bhutto vs Chief of Army Staff and the Federation of Pakistan case. The court declared as legal, the military coup staged by Gen. Zia-ul-Haq on the basis of the ‘Doctrine of Necessity’.
In the Haji Saifullah vs Federation of Pakistan case, the Supreme Court declared the dissolution of the Assembly and the removal of Prime Minister Mohammad Khan Junejo in 1987 illegal. But since a new government had already been elected by the time the judgement was pronounced, the court did not reinstate Junejo and the Assembly.
The Supreme Court upheld the dissolution of Assemblies and the ouster of Prime Minister Benazir Bhutto under Article 58(2b) in 1990 and 1996. Article 58 (2b) under the Eighth Amendment had given the President power to dissolve the National Assembly.
But the Supreme Court took a different stand on this issue in 1993 when it reinstated Prime Minister Nawaz Sharif, striking down the dissolution of the National Assembly.
Gen.Pervez Musharraf’s 1999 coup was indemnified by the Supreme Court under the ‘Doctrine of Necessity’. In September 2007, the Supreme Court dismissed petitions against Gen. Musharraf holding the two offices of President and army chief. This enabled him to contest the Presidential election for a second term in uniform. An indirect Presidential election was held on 6 October 2007 and Musharraf was elected by an overwhelming majority. The near-unanimous nature of Musharraf’s victory was made possible by the absence of two key political contenders, Nawaz Sharif and Benazir Bhutto, who were in exile abroad.
However, on November 3, 2007, Musharraf suspended the constitution, imposed a State of Emergency, and placed dozens of senior judges under house arrest. These moves sparked mass protests by lawyers. By August 2007, public opinion polls had showed that 64% of Pakistanis did not want another term for Musharraf.
Musharraf restored the constitution in December 2007 and parliamentary elections were held on 18 February 2008, which the Pakistan Peoples’ Party (PPP) won. In August 2008, the Pakistan Peoples’ Party headed by Benazir Bhutto and the Pakistan Muslim League (N) headed by Nawaz Sharif, entered into a pact to force Musharraf to step down and impeach him for misdemeanors from the time he seized power in 1999.
Musharraf saw the writing on the wall and on August 18, 2008, he announced his resignation and on November 2008 left for London.
In 2009, the Supreme Court ruled that Musharraf’s decision to impose the emergency was illegal. And in 2013, the PML (N) government of Nawaz Sharif brought charges of high treason against him for imposing the 2007 emergency. In December 2019, Musharraf was sentenced to death in absentia. But the sentence was not carried out because the army was against the judgement. And Imran Khan, the incumbent Prime Minister, supported the army. The judiciary lost.
It is observed that the Pakistani judiciary plays by the ear. If the government of the day is strong, it is with the government. If the government is weak, it exercises its judicial independence.
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