Editorial:

Doctrine of Necessity strikes again

The Supreme Court (SC) on Friday 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 “organisational condition” that has triggered its latest ouster.

In Pakistan, the record relating to the Doctrine is at best contradictory, fluctuating between acceptance bordering on advocacy, reluctant acceptance, and outright rejection. It was first propounded by Chief Justice Muhammad Munir in The State vs Dosso in the 1950s where he termed “an abrupt political change” as a “revolution that not only causes the destruction of the existing Constitution but also the validity of the national legal order”. He then went on to quote at length from the above mentioned work of Kelsen. He took the precedent from an earlier case in Rhodesia. Africa, where military coups were endemic, at once took up the Munir precedent. In 1971, the Nigerian Supreme Court was asked to hold that the military takeover of General Yakubu Gowan in 1966 did annul the Federal Constitution of Nigeria in the Kelsenian sense.

Pakistan then turned 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 had superseded. Pakistan overturned Asma Jilani vs The State 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 a 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. *