Pakistan Policemen outside the Supreme Court building in Islamabad on November 4, a day after Musharraf declared a state of emergency.
In the evolution of constitutional doctrines, the contribution of Pakistan’s Supreme Court has been indelible, even though Pakistan, in the eyes of many, is a failed state with its experiments in democracy proving always unsuccessful. Although it would seem India has much to offer to Pakistan in terms of durability of the state and its institutions, the Supreme Court of India has at times acknowledged the contribution of the Pakistan Supreme Court to the evolution of Indian constitutional jurisprudence.
The Indian Supreme Court’s judgment in the Bommai case (1994) is an instance when it acknowledged the Pakistan Supreme Court’s judgment while interpreting the emergency powers of the President. In Federation of Pakistan v. Mohd. Saifullah Khan (1989), the Pakistan court held that the discretion conferred on the President by the Constitution cannot be regarded to be an absolute one but is to be deemed to be a qualified one in the sense that it is circumscribed by the object of the law that confers it. Although the Pakistan Supreme Court held so in a case where the President’s power to dismiss a federal government and the National Assembly was challenged, the Indian Supreme Court considered the relevance of the court’s approach as significant in the context of the President’s power to dismiss State governments and dissolve Assemblies in India.
Today, in law schools across the world, the study of jurisprudence is deemed incomplete without a discussion of Hans Kelsen’s Grundnorm,or the basic norm, thesis. The Pakistan Supreme Court is credited with the first invocation of this thesis to uphold the validity of a coup headed by Iskandar Mirza, who was President of Pakistan under its first Constitution (1956). Since then, the theory has been applied in similar situations in other countries. In his main work, General Theory of Law and State (1946), Kelsen advances his case for a Grundnorm from which the entire legal system derives its validity. He argued that a successful coup d’etat or revolution could create a new basic norm and, therefore, could be the supporting plank for a “new legal order”. Once the revolution was shown to be efficacious in nullifying the old basic norm, it had to be regarded as a law-creating fact giving validity to a “new legal order”.
The Pakistan Supreme Court’s use of Kelsen’s thesis in October 1958 in the cause celebre, State v. Dosso, has led to constitutional debates across the world on the legitimacy of coups. The court, presided over by Chief Justice Muhammad Munir, held that there had been a successful revolution by Mirza and, applying Kelsen, declared that the document issued by him, Laws (Continuance in Force) Order (LCFO), was the law.
This order purported to avert the drastic consequences of an abrogated Constitution by continuing to recognise the pre-existent laws as valid unless expressly modified by the “martial law” government. The case came up for hearing on the sixth day after the coup. Ironically, the day after the judgment, General Ayub Khan removed Mirza and exiled him.
Fifteen years later, in Asma Jilani v. Government of Punjab (1972), the Pakistan Supreme Court reversed its decision in State v. Dosso. It declared as illegal the second round of “martial law” rule, which began under General Yahya Khan, after President Ayub Khan stepped down in March 1969. Yahya Khan’s rule began after the second Constitution of Pakistan (1962) was abrogated in an atmosphere of widespread unrest against Ayub Khan who called in the army to “take over” the government.
Yayha Khan was the chief of the army in March 1969. The court found that there was no basis under the Constitution for the “passing over” of power to the army. According to Articles 12 and 16 of the Constitution (1962), the Speaker of the National Assembly should have taken over from the outgoing President. Before the Supreme Court pronounced its judgment in this case, Yahya Khan resigned and Z.A. Bhutto became President under an interim Constitution. Nevertheless, the judgment created a huge sensation and it was widely hailed by the public.
Asma Jilani, a political leader and a newspaper editor, was detained under the Martial Law Regulation issued by Yahya Khan in 1971 in his capacity as the Chief Martial Law Administrator. The Regulation enabled the military authorities to detain a person without trial for an indefinite period. None of the safeguards available to such detainees under the previous Constitutions (1956 and 1962) was provided. The Lahore High Court applied State v. Dosso, and held the decree to be binding and declined to interfere. On appeal, the Supreme Court overruled State v. Dosso and declared the regime illegal. It held that unless the application of the decree in question could be justified on the grounds of public necessity, it had no validity of its own. The court found that there was no such necessity to justify it and held the decree and the Regulation illegal.
Examining State v. Dosso in this case, the then Chief Justice, Hamoodur Rahman, asked what difference it made in Kelsen’s terms that the man responsible for the main coup d’etat was himself replaced (Mirza). State v. Dosso’s reversal suggested the futility of employing any theory or doctrine to justify so totally unconstitutional an act as a coup d’etat. According to the Supreme Court in the Jilani case, State v. Dosso had not judged the efficacy of the initial coup properly. Was it possible to assess that efficacy in a matter of merely six days between the coup and the hearings in State v. Dosso when the issue was put to test? Did the subsequent coup within the coup not prove the State v. Dosso court wrong?
In the Jilani case, the Supreme Court pointed out that Kelsen postulated Grundnorm as a norm of international law that successful coups d’etat were law-creating facts. And it was the basic norm of recognition which supported the “continuity of the identity of the State and national law”. “An individual does not become the Head of State through the recognition of other States but through the municipal law of his own State,” the court held. What followed was the court’s formulation that the criterion of “recognition” of a state in international law would be different from that applicable to determine the legality of a domestic government.
In the Jilani case, the court stated that Kelsen could not have intended to lay down that “every person who was successful in grabbing power” could claim to be the source of law and sovereignty. On the contrary, he meant to say that the state was not above the law and that might did not make right. Besides, his theory required that an effective Constitution be in existence in order to give validity to any rule made under it. Therefore, the Kelsenian concept that the efficacy of a law would ipso facto confer legality upon it was expressly repudiated.
The court almost emasculated the doctrine of necessity in the Jilani case. The court’s pronouncement that the army regime was illegal could have meant invalidation of a considerable number of actions that took place under its authority. The doctrine of necessity, therefore, came in handy in order to avoid damage and inconvenience on so large a scale. This doctrine gave to de facto actions the same status as de jure ones. But the court limited the doctrine’s application.
Pakistan’s military rulers: (From top) Field Marshal Ayub Khan, General Yahya Khan, General Ziaul Haq and General Pervez Musharraf.
The 1973 Constitution elevated the status of the Prime Minister while reducing the status of the President and incorporated provisions presumed to deter the army from interfering in politics. The army under General Mohammed Ziaul Haq took power on July 5, 1977. When Z.A. Bhutto and 10 other Pakistan People’s Party (PPP) leaders were re-imprisoned by Zia in September 1977 and threatened with trial before military tribunals, his wife filed a petition in the Supreme Court challenging the validity and legality of the martial law regime and alleging that the purpose of the arrests was to prevent Bhutto’s participation in the elections (Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan, 1977). On the fourth day of court hearings in this case, Zia promulgated new curbs on political activities and postponed the national elections indefinitely. The Supreme Court’s decision in this case supported the martial law government on the basis of the necessity doctrine.
Newly appointed Chief Justice Anwar ul Haq issued an opinion giving the military government free rein to hold power and offering Zia warrant to retain that power. The court agreed with the military that election corruption and political disruptions after the 1977 elections had so compromised the PPP government that it could no longer represent the electorate. The Chief Justice anticipated unknown and immeasurable political disruption, seen through the eyes of its instigators, to defend the army’s right to usurp power.
The court took the government at its word that elections would soon be scheduled and imposed weak conditions on Zia’s confirmation. Zia promised elections in 90 days, but continued to rule for nine years without elections. The Chief Justice discarded the revolutionary legality argument of Dosso’s case because the Constitution was not formally abrogated and “the breach of legal continuity was of a purely temporary nature and for a specified limited purpose”. The court declared military intervention to be necessary and validated all actions pursuant to military takeover.
On October 12, 1999, General Pervez Musharraf, Chief of the Army Staff, took over power and dismissed the government of Prime Minister Nawaz Sharif. The takeover was challenged directly in the Supreme Court of Pakistan under Article 184(3) of the Constitution (Syed Zafar Ali Shah v. Gen. Pervez Musharraf). In this case, the Bench comprising 12 judges gave a unanimous judgment holding that the Nawaz Sharif government was an oligarchy and there was no democracy prevailing in the country.
The court observed that the machinery of the government both at the Centre and in the Provinces had broken down completely and the Constitution had been rendered unworkable. A situation had arisen for which the Constitution provided no solution, and therefore, the armed forces had to intervene to save the state from further chaos, for maintenance of peace and order, for economic stability, and for justice and good governance.
The court disagreed with the view that the doctrine of necessity was no longer valid. In view of the peculiar circumstances, the court granted reasonable time to enable the Chief Executive to hold new general elections.
As the political events in Pakistan take another tumultuous turn, we can expect the repacked Supreme Court of Pakistan to put another gloss on the doctrine of necessity to validate the current rule of Musharraf. Time alone will tell whether the Pakistan Supreme Court can rediscover the spirit of its decision in the Jilani case, and effectively invalidate a usurper regime while it is in office. •
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