Law of Necessity… A Logical Recourse

Constitutional crises in Pakistan have remained endemic and find roots in the electoral politics adopted by the Muslim League in the pre 1947 era. 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. If one was to read ‘Pakistan: The Unstable State’ edited by H. Gardezi and Jamil Rashid in 1983, and compare it to the present political and constitutional crises, the script appears familiar. So, do we infer that nothing has changed?

All military interventions in Pakistan have a distinction of getting legal/constitutional indemnity in two phases. First, the judiciary legalises the intervention by invoking the ‘Doctrine of Necessity’ recognised 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 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 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’ continue to patrol the society. It normally takes another decade for the action replay.

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 legalised 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 NESSECITY are met.

This argument will not be logical if recourse to the judgement is not taken. To quote a few clauses of this ruling:

[[ 1. On 12th October, 1999 a situation arose for which the Constitution provided no solution and the intervention by the Armed Forces through an extra constitutional measure became inevitable, which is hereby validated on the basis of the doctrine of State necessity and the principle of salus populi suprema lex as embodied in Begum Nusrat Bhutto’s case. The doctrine of State necessity is recognised 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 foreign jurisdiction to fill a political vacuum and bridge the gap.

2. Sufficient corroborative and confirmatory material has been produced by the Federal Government in support of the intervention by the Armed Forces through extra constitutional measure. 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.

4. 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;

6. (i) 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:-
a) 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;
b) All acts which tend to advance or promote the good of the people;
c) All acts required to be done for the ordinary orderly running of the state; and
d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive.
(ii) That constitutional amendments by the Chief Executive can be resorted to only if the Constitution fails to provide a solution for attainment of his declared objectives and further that the power to amend the Constitution by virtue of clause 6 sub clause (I) (a) ibid is controlled by sub-clause (b)(c) and (d) in the same clause.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
(vii) That the courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior courts.
9. That the government shall accelerate the process of accountability in a coherent and transparent manner justly, fairly, equitably and in accordance with law.

13. This is not a case where 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.

16. That having regard to all the relevant factors involved in the case including the one detailed in paragraphs 14 and 15 above three years period is allowed to the Chief Executive with effect from the date of the Army take-over i.e. 12th October, 1999 for achieving his declared objectives.

17. That the Chief Executive shall appoint a date, not later than 90-days before the expiry of the aforesaid period of three years, for holding of a general election to the National Assembly and the Provincial Assemblies and the Senate of Pakistan.

18. That this Court has jurisdiction to review/re-examine the continuation of the Proclamation of Emergency dated 12th October, 1999 at any stage if the circumstances so warrant as held by this Court in the case of Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan.]]

Some of the conclusions are: -

1. The attainment of the objectives mentioned repeatedly and cognisance of the federal parliamentary democracy remain the two most important expectations of this ruling.

2. If we accept the argument that the government failed to achieve either, then we also need to analyse whether the subsequent actions of the government justified and manifested the cardinal logic and expectations of this judgement.

3. If for argument, we infer that the government failed to meet the ends of Necessity, then we must also consider whether law provides a recourse and referral to the supreme judicial body in light of Articles 6, 9 and 16 of this judgement. The two most logical arguments invoking this referral are:
A. Transparent Accountability
B. 17th Amendment (that indemnified the military coup) violated the basic parliamentary structure and prolonged the spirit of necessity by accepting a President in uniform