The Doctrine of Necessity and Its Application in Pakistan Submitted to Mr. Saleem Raza Submitted by Wajid Ali 4451-FSL/LLB/F15 Faculty of Shariah and Law International Islamic University IslamabadTable of Contents Background: Facts:... Judgement: Dissent: .. Significance Introductio Background: Main Events/Fact! Effect of Lahore High Court: Some technical points: Main points/aspects of the judgment: Conclusion... Introduction: ... A severe blow for governor general’s effect: Filing of a reference in federal court by governor general Reference of the setting up of another constituent assembly: Conclusion: Introduction: Facts of case: Principles of law or rule of la Conclusion: ... Introduction: Facts of Case: . Decision of the Supreme Court:... Conclusion... Case: ..Introduction: The term Doctrine of Necessity is a term used to describe the bi which administrative actions by administrative authority, which are designed to restore order, are found to be constitutional. The maxim on which the doctrine is based originated in the writings of the medieval jurist Henry de Bracton, and similar justifications for this kind of administrative action have been advanced by more recent legal authorities, including William Blackstone. In modern times, the term was first used in a controversial 1954 judgment in which Pakistani Chief Justice Muhammad Munir validated the extra-constitutional use of emergency powers by Governor General, Ghulam Mohammad. In his judgment, the Chief Justice cited Bracton's maxim, 'that which is otherwise not lawful is made lawful by necessity’, thereby providing the label that would come to be attached to the judgment and the doctrine that it was establishing. The Doctrine of Necessity has since been applied in a number of Commonwealth countries, and in 2010 was invoked to justify administrative actions in Nepal. What is objectionable is not whether the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the minds of others that there is a likelihood of bias affecting the decision. The basic rule underlying this principle is that ‘Justice must not only be done but must also appear to be done’. Doctrine of Necessity is an exception to Nemo judex in causa sua.! Application in Pakistan: The titled cases i.e. Maulvi Tamizuddin Khan’s Case, Usif Patel’s Case, Dosso’s Case, Asma Jelani’s, Begum Nusrat Bhutto’s, Miss Benazir Bhutto and Syed Zafar Ali Shah are taken from the various regimes of martial law, are the Circumstantial Evidences and repercussion on the legislature, Judiciary and Executive. These cases have provided the way out or way in for imposing martial law in the country time and again. It is also evident from these cases that due to reasons the court of law also supported such actions, which * hup:thvww.legalservicesindia.convarticle/1113/Doctrine-4 eventually adversely affected the spirit of the constitution of Pakistan. These actions by various individuals never allowed flourishing of political institutions, on the other hand all institution under the establishment were also working on sort of ad hoc basis. No consistency in any process of development and growth is being witnessed in Pakistan. While talking of imposition of Martial Law in Pakistan and these cases are considerable. In order to properly appreciate the critical development and evolution of the doctrine it is necessary to acquaint ourselves with the facts and the law laid down in the above cases which are placed here in details.” Federation of Pakistan vy. Maulvi Tamizuddin Khan: (PLD 1955 FC 240) Court: Federal Court of Pakistan Court members: 1. Chief Justice Mr. Per Muhammad Munir 2. Justice Mr. Mohammad Sharif 3. Justice Mr. S. A. Rehman 4. Justice Mr. S. M. Akram 5. Justice Mr. Alvin Robert Cornelius. Background: Federation of Pakistan v. Maulvi Tamizuddin Khan (1955) is a court case of the Dominion of Pakistan. The Federal Court of Pakistan (now the Supreme Court of Pakistan) ruled in favor of the Governor General of Pakistan's dismissal of the Ist Constituent Assembly of Pakistan. The dismissal was legally challenged by Maulvi Tamizuddin Khan, the president of the assembly. Except one dissenting opinion, the majority of the court supported the dismissal on grounds of the doctrine of necessity. The verdict was considered a blow to democratic norms, which had ramifications in modern-day Pakistan and Bangladesh. 2 Imernational J. Soe, Sei. & Education:2012 Vol, 2 Issue 2, ISSN: 2223-4934 E.and 2227-393X PrintFacts: In 1954, Governor General Ghulam Muhammad dissolved the Constituent Assembly of Pakistan. Earlier, he dismissed Prime Minister Khawaja Nazimuddin who enjoyed the confidence of the constituent assembly. Maulvi Tamizuddin Khan, the President of the Constituent Assembly and a representative from East Bengal, challenged the Governor General's actions in the Sindh High Court, where the dissolution was ruled as ultra vires. The federal government appealed in the country's apex Federal Court.* Judgement: Tn 1955, the Federal Court led by Chief Justice Muhammad Munir ruled in support of the Governor General. The court suspended the decision of the High Court and held the Governor General, and not the Constituent Assembly, to be the sovereign authority. The court opined that royal assent can only be given by the Governor General as Pakistan was still a dominion and hence not a fully independent country. It gave the doctrine of necessity as the grounds for its decision. Dissent: Justice A.R. Cornelius wrote a strong dissenting Opinion presenting following reasons: There is no obligation that all laws made by the Constituent Assembly of a constitutional nature require the assent of the Governor-General for their validity and operation because: (a) Our practice demonstrates the denial of allegiance to the British Sovereign, for example, Muhammad Ali Jinnah refused to take oath as per the British Tradition; and secondly Governor-General Ghulam Muhammad did not send his assent upon the accession to British throne of Queen Elizabeth II, as was tradition. Which means we are governing this region in a different way. (b) The derivation of the powers of the Constituent Assembly under Section 6(1) of the Indian Independence Act, 1935 overlooked the fact » hup:/swwpja. gov. pk/systemv/files(CONSTITUTIONAL_ HISTORY pxlf6 that it is the creation of supra-legal power to discharge the supra-legal function of preparing a constitution for Pakistan. (c) The Constituent Assembly was to be placed above the Governor- General, the Chief Executive of the state, for two reasons, firstly that the Constituent Assembly was a sovereign body, and secondly because the statutes under which the Governor-General was required to function, were within the competence of Constituent Assembly to amend. (d) There could be no doubt that neither the British Sovereign nor the Governor-General, as such was part of the Constituent Assembly Significance: The verdict dealt a blow to the notion of parliamentary supremacy in Pakistan. The irony was that Pakistan was an independent dominion created by the Indian Independence Act 1947. The British parliament enjoyed parliamentary supremacy in its own realm. But the Federal Court's verdict stripped Pakistan's parliamentary supremacy, even though Pakistan itself was an independent realm of the British monarchy. The verdict paved way for the future judiciary to support unconstitutional and undemocratic actions, such as military coups. The doctrine of necessity was applied by successive Pakistani and Bangladeshi courts to validate the actions of marital law authorities.* The State v/s Dosso and Others: (PLD 1958 SC 553) Court: Supreme Court of Pakistan Present: 1. Chief Justice Mr. Muhammad Munir 2. Justice Mr. M. Shahabuddin 3. Justice Mr. A. R. Cornelius 4. Justice Mr. Amiruddin Ahmad * hups:/fen sikipedia.org/wiki/Pederation_of_Pakistan_v._Maulvi_Tamizuddin_Khanteite_ref-Khan2003_2-0Introduction: State v/s Dosso is a simple case of murder committed by a person named, Dosso in Balochistan. He was convicted under the tribal system of justice by Loya Jirga as enumerated in FCR (frontier crimes regulation); but his relatives approached to the Lahore high court which repealed the decision of Loya Jirga, later on, on the appeal of Federal Government, Supreme court reversed the decision of Lahore High court. The case got prominence, because it indirectly questioned the legitimization of Martial law imposed by Iskandar Mirza on 7th oct,1958. Background: A murder took place in the Lora lai district of Balochistan by a person named as Dosso. He was arrested and was handed over to the Council of Elders (Loya Jirga). The Tribal authorities charged him under FCR, 1901.The relatives of Dosso upon this filed a writ petition in Lahore High court against the decision of Loya jirga. Lahore high court heard the case under the constitution of 1956, and held its verdict in favour of Dosso. Lahore high court also declared FCR as an unconstitutional. The Federal Government filed appeal against this decision in SC of Pakistan.SC decided the case in favour of the federal govt. Main Events/Facts: 1)Arrest and Conviction of Dosso: Dosso and other were convicted under Section 11 of FCR 1901, and handed over to Loya Jirga. The Jirga convicted Dosso. 2)Petition in Lahore High court against FCR: The relatives of Dosso filed a petition against the proceedings of council of elders regarding Dosso case in Lahore High Court. They challenged the references and the convictions on the grounds that the relevant provision of the FCR were void being repugnant in the " Equity before Law" and the equal protection of Law" and the right to counsel embodied in Articles 5 and 7 of the 1956 Constitution. 3)Decision of Lahore High Court: the High Court decided the case in favour of Dosso and declared FCR repugnant to 1956 constitution. Article 5 and 7 of which ensured the8 equality of all before the law. Thus Lahore High Court decided the proceedings of council of elders as null and void under FCR, 1901. Effect of Lahore High Court: The effects of this decision were that, after the declaration of FCR as repugnant to the constitution; then the validity of those cases were questioned, which were decided under FCR since long before it was enacted, and especially since 1956 when the new constitution was promulgated. Appeal in the Supreme Court of Pakistan: The Federal Government of Pakistan went into an appeal in SC against the verdict of the Lahore High Court. The Supreme Court decided 13th October 1958 as the date for hearing the case. But prior to that on October 7, 1958, a drastic change came in the political history of Pakistan; when Ist martial was Imposed in the country. Promulgation of Martial Law: On October 7th 1958 the President of Pakistan Iskandar Mirza declared Martial Law in the country and made AYUB KHAN as Chief Martial Law Administrators(CMLA). the central and provincial legislature were dissolved with the abrogation of the 1956 Constitution. Laws (Continuance in Force) order: Three days later the Laws (continuance in Force) order was issued according to which all other laws except those of 1956 constitution were validated and also the jurisdiction of all courts were restored. Thus, law (continuance in force) order 1958 was the NEW LEGAL ORDER, which replaced the old legal order I-e the 1956 constitution. Some technical points: Followed by the imposition of Martial Law some technical points raised in Dosso case throughout the country. a) if Supreme Court would have upheld the decision of Lahore High Court in Dosso case, it means the 1956 Constitution was still in force as Lahore high Court decided the case in accordance with Article 5 and & 7 of the 1956 constitution.9 b) And if 1956 constitution was still enforcing then what was the role of Martial law regulation I-e Laws (continuance in Force) Order 1958. In short it would have been a challenge to the Martial Law administration. Judgement of the supreme court: The Supreme Court decided the case unanimously against the verdict of Lahore High Court. The Supreme Court decision was based on the Hans Kelson's theory of legal positivism. Main points/aspects of the judgment: 1)Legislation of 1958 martial law: The judgment held that 1958 Martial law imposition is a kind of revolution (peaceful revolution) which is not resisted or opposed by the common people; this clearly defines that the people are happy with this change, thereafter this revolution or martial law is legal as long as it satisfies the common people. 2)Recognition of Laws (continuance in force) order: The Supreme Court held that the Laws (cOntinuance in Force) order 1958 was the NEW LEGAL ORDER and the validity of laws and the correctness in the judicial decisions would be determined according to it. 3)Restoration of FCR: The Supreme court also held that as the 1956 constitution was abrogated therefore FCR 1901 was still in force in accordance with the laws (continuance in force) order, 1958. 4) The Decision of LOYA JRGA Is Valid: The court also made a reference to the decision of council of elders, that its decision is valid and up to the mark. Critical Analysis/Commentary/Impacts of SC verdict: 1)Recognition of ML: The judgement of SC recognized the ML as legal and valid action; this had a far reaching effects on the political history of Pakistan. It opened the gates for the future ML” s in the country; also the recognition of10 ML provided with absolute powers in the hands of ML administrator who generously used it for next 10-11 years. 2)Halt Democratic process: The verdict of SC halted the democratic process of Pakistan which had recently been on the road after the promulgation of Ist constitution of Pakistan on 23rd march 1923; and threw the country onto the track of dictatorship. 3)Deprivation from Constitution: As a result of the judgment, Pak was deprived from its 1st independent constitution framed and promulgated after so much efforts, and a long struggle of 11 years. 4)Encouraged Military intervention: The verdict of SC encouraged the subsequent military interventions in the politics of Pakistan; which occurred three times I-e Gen; Yahiya 1967, Gen; Zia 1979 and finally Gen; Musharraf in 1999, after this sad event. These interventions potently damaged the democratization in pak. 5) FCR Revalidated: The judgement of SC revalidated the British Imperial legacy, the curse, J-e FCR; popularly known as black law, in the tribal areas of Frontier and Balochistan; which is still enforced even today. Had it not been declared as valid in 1958, the disturbances now in these regions would have not been exist, if these people were brought under the arena of normal judicial system of Pakistan. 6) Damaged Independence of Judiciary: The verdict was a serious blow to the independence of judiciary. The judiciary was bound to render its services under the new legal order of, Laws (continuance in force 11 oct,1958); even if the judges have to give decisions against the basic principles of justice, they were bound to do so. 7) Curbing of Appellate Jurisdiction:ll The decision also took away the power of the courts to hear appeals against the cases/actions of federal Govt. 8) Laughing stock for civilized world: The judgement provided a laughing stock for civilized world on Pakistan; Because of the recognition of ML on the basis of Hans Kilson outdated theory, which is an irrelevant principle. 9) Judiciary Bow down in front of Executive: Once again the judiciary bowed down in front of strong executive in this case. 10) Disturbed ties between East and west Pakistan: The abrogation of 1956 constitution also led to the upset of agreements between East and West Pakistan; which were resolved after long struggle under 1956 constitution. The grievances of East Pakistan were almost pacified in 1956 consensus based constitution by incorporating both Urdu and Bengali as national language etc. Had the ML was not legalized at that time, we would have not lost East Pakistan.* Conclusion: In this case the Pakistan Supreme Court used jurist Hans Kelsen's theory that a revolution can be justified when the basic norm underlying a Constitution disappears and a new system is put in its place. When revolution came then the old system will be replaced with new system. Usif Patel and others v/s The Crown: (PLD 1955 FC 387) Court: Federal Court of Pakistan Present: 1. Chief Justice Mr. Muhammad Munir 2. Justice Mr. S. M. Akram 3. Justice Mr. A. R. Cornelius 4. Justice Mr. Muhammad Sharif 5 hutp:/fwww.essforum,com,pkfess-optional-subjects/group-vifconstitutional-law/98 162. state-v-s-losso-case- updated. hum5. Justice Mr. S. A. Rahman Introduction: The actions of governor general came for discussion before the Federal Court in Yousef Patel vs Crown case. The court while dealing with the case criticized the action of the governor general in enacting Constitutional legislation and in setting up a constitutional convection as being beyond his powers. A severe blow for governor general’s effect: This judgment was a severe blow for the governor general efforts to revalidate the invalid laws and make constitutional provisions through an ordinance. Filing of a reference in federal court by governor general: As the country was facing the severe constitutional cases, governor general therefore filed a reference in the federal court of Pakistan. He sought the court's opinion on the following points. Whether constituent assembly was rightly dissolved by the governor general? Whether the constituent assembly convention proposed to be setup by the governor general will be competent to exercise the power conferred on the constituent assembly by the Indian independence act,1947? Opinion of the federal court of Pakistan: The court after careful consideration of the issues raised, came up with the following details. Reference of the dissolution of the constituent assembly: Regarding the dissolution of the constituent assembly the court said the dissolution had become imperative as the constituent assembly had failed to frame the constitution for Pakistan in reasonable time. Reference of the setting up of another constituent assembly: The court further held that the dissolved constituent assembly was set up under an executive order and not under law. Therefore, the new constituent assembly can also be setup by similar order provided that it should be a representative body and the new constituent assembly could13 be competent to exercise all powers conferred by Indian independence act 1947. Conclusion: The decision of the federal court of Pakistan set the turn for all the future decisions. Governor general decision to dissolve the constituent assembly struck the first serious blow to the weak democratic institution in Pakistan. This decision has deep repercussion on the subsequent legal and constitutional development in Pakistan, the fruits of which we have eaten for a number of time throughout in our constitutional history. The federal court in order to make the governor general’s act valid through this case declared as many as 46 laws null and void.° Asma Jilani vs Federation of Pakistan (PLD 1972 SC 139) Court: Supreme Court of Pakistan Present: 1. Chief Justice Mr. Hamood ur Rehman 2. Justice Mr. Waheed ud Din Ahmad 3. Mr. Muhammad Yaqub Ali 4. 5 . Jus ice Mr. Salahud din Ahmad and . Justice Mr. Sajjad Ahmad Introduction: Judiciary plays a very important role in the interpretation of the statutes and laws. The judiciary has a pivotal role in the development of law. It develops law by giving judgments which become precedents. So precedents may be regarded as source of law. In Pakistan to the superior Courts gave judgments which became precedents. There have been a lot of important and leading cases in the history of Pakistan. Asma Jilani vs Government of the Punjab case is one of them. * huup:/fwww.essforum,com,pkfess-optional-subjects/group-vifconstitutional-1aw/26830-imp-const-law-eases- pakistan himl14 Facts of case: The facts of the Asma Jalani v/s Government of Punjab case are following: 1. Challenge of Malik Altaf Gauhar’s Detention The appeals were filed because of the detention of Malik Altaf Gauhar and Malik Ghulam Gillni. The detention of both of them was challenged. 2. Persons challenged the detention The persons who challenged the detention were Miss Asma Jilani who filed appeal for the release of Malik Ghulam Jilani and the other one was Zarina Gauhar who filed appeal for the release of her husband Altaf Gauhar. 3. Court in which Petition filed The writ petition was filed by Asma Jilani in the Lahore High Court for release of her father Ghulam Jillani and Mrs. Zarina Gohar filed an appeal in Sindh-Balochistan High Court. 4. Law under which Mr. Altaf Detained Altaf Gauhar and Malik Ghulam Jilani were detained under Martial Law Regulation No. 78 of 1971. Principles of law or rule of law: Following are the Principles of law or Rule of law i. Principle laid down in State Vs Dosso It was held in this appeal that principles, which were laid down in State vs Dosso, were not justified. ii. Constitution of Pakistan 1962 It was settled in this appeal that courts gave full effect to constitution of 1962, and all laws made and acts of various civil and military governments became lawful and valid due to that recognition, which constitution of 1962 and courts gave them. iii. Court Duty15 It was held in this appeal that court’s judicial function was to adjudicate upon a real and present controversy, which a litigant raised before it, and if litigant did not chose to raise a question, it was not for court to raise it suo motu. iv. Bias in Judge It was settled in this appeal that mere association with drafting of a law could not disqualify a judge from interpreting that law in light of those arguments, which presented before him. v. Jurisdiction It was held in this appeal that superior courts are judge of their own jurisdiction. vi. Proclamation of Martial Law It was decided in this appeal that General Yahiya Khan’s proclamation of martial law was illegal. vii. Doctrine of Necessity Although doctrine of necessity was once again pleaded to defend military regime of General Yahiya Khan, yet same was rejected through judgment of this appeal. Conclusion: To conclude, it can be stated that judgment of case of Miss Asma Jillani was though announced after end of General Yahiya Khan’s rule, yet it initially led to end of Bhutto’s martial law and finally it paved way for restoration of democracy and for adoption of constitution of 1973.7 Begum Nusrat Bhutto vs COAS: (PLD 1977 SC 657) Court: Supreme Court of Pakistan Present: 1. Chief Justice Mr. Anwar ul Haq 2. Justice Mr. Waheed ud Din Ahmad * hutps:Hfase-lawforum.blogspot.conv2016/02/case-law-asi jilani-vs-federation-of html16 3. Justice Mr. Muhammad Haleem 4. Justice Mr. Safdar Shah 5. Justice Mr. Muhammad Afzal Cheema 6. Justice Mr. Dorab Petel 7. Justice Mr. Muhammad Akram 8. Justice Mr. Naseem Hassan Shah and 9. Justice Mr. Qaisar Khan Introduction: After independence of Pakistan, Pakistan is weal political institution, powerful Army, several military coups and infamous Article 58(2)(b) of Constitution of Pakistan 1973. Due to these factors, the constitution development was stop in Pakistan. Judiciary plays an important role in the interpretation of statutes and laws. These have been a lot of important and leading case in the History of Pakistan. Begum Nusrat Bhutto vs Chief of Army Staff and Federation of Pakistan case in one of them. Facts of Case: Following are the facts of case of Begum Nusrat Bhutto vs Chief of Army Staff i. Allegation of Official Interference with Elections of 1977 Opposition parties alleged that there was official interference with elections of 1977 in favour of ruling party of Prime Minister Zulfiqar Ali Bhutto. ii, Anti Bhutto Movement Opposition parties never accepted results of elections of 1977. Therefore, they started anti-Bhutto movement. iii. Military Coup Prime Minister Zulfiqar Ali Bhutto’s dialogues with opposition leaders failed to stop military interference, and eventually General Zia-ul-Haq dismissed his government through military coup and imposed martial law. iv. Arrest of Zulfiqar Ali Bhutto17 With imposition of martial law, Zulfiqar Ali Bhutto was arrested. v. Release of Zulfigar Ali Bhutto After some days, military government released Zulfiqar Ali Bhutto. vi. Re-arrest of Zulfiqar Ali Bhutto After his release, Zulfiqar Ali Bhutto started public campaign, and this campaign eventually caused not only his re-arrest, but also arrest of his colleagues. vii. Institution of Case Against re-arrest of Zulfiqar Ali Bhutto, Begum Nusrat Bhutto filed this case against Chief of Army Staff. Decision of the Supreme Court: Following are the decision of the Supreme Court i) Rectification of Objections It is clear that objection is only in the nature of technicality. The Chief of Army Staff is also CMLA and the objection could be rectified by adding words CMLA to the description of respondents as stated in petition. ii) Kelsen’s Theory The theory of revolution legality can have no application to situation where the breach of legal continuity is admitted to be of purely temporary nature and for specified limited purpose. It will be inappropriate to seek to apply Kelsen’s theory to such transient and limited change in legal continuity of country thus giving rise to unwarranted consequences of far reaching character not intended by those responsible for temporary change. iii) Failure to maintain Law and Order The Prime Minister faced difficulty to maintain law and order. There was political crisis in country leading to constitutional breakdown. A situation had arisen for which Constitution provided no situation. It was in these circumstances that Chief of Army Staff General Muhammad Zia-ul-Haq intervened to save country from chaos and bloodshed to18 safeguard integrity of Pakistan and to separate warring factions, which brought country to brink disaster. vi) Arrangement of Fair Election Chief Martial Law Administrator has stepped in for a temporary period and for purpose of arranging fair election. v) Jurisdiction of (Law continuous in force order) The Chief Martial Law Administrator was justified in providing in Article 2(3) of Law (Continuous in Force) Order 1977 that right to enforce fundamental rights shall be suspended. Conclusion: To conclude that Martial law as enforced due to state necessity and for the welarde of people. The Supreme Court gave decision in favor of federation.’ Syed Zafar Ali Shah and others v/s Chief Executive of Pakistan and others: (PLD 2000 SC 869) Court: Supreme Court of Pakistan Present: . Chief Justice Mr. Irshad Hasan Khan . Justice Mr. Muhammad Bashir Jehangiri . Justice Mr. Sh. Ijaz Nisar . Justice Mr. Abdur Rehman Khan . Justice Mr. Sh.Riaz Ahmed . Justice Mr. Ch. Muhammad Arif . Justice Mr. Munir A. Sheikh . Justice Mr. Ra: . Justice Mr. Nazim Hus 10. Justice Mr. Iftikhar Muhammad Chaudhary 11. Justice Mr. Qazi Muhammad Farooq 12. Justice Mr. Rana Bhagwan Das WRENS Cnr r93d udy blogspot.com/201 $/02/ease-law-begum-nusrat-hhutto-vs-coas html19 Case: Following ouster of Muhammad Nawaz Sharif on October 12, 1999, the Supreme Court was moved through Zafar Ali Shah case “Zafar Ali Shah vs General Pervez Musharraf” 2000 SCMR 1137. The Supreme Court led by Justice Arshad Hasan Khan and also including Justice Iftikhar Muhammad Chaudhry not only “rejected” the petition but also empowered the fourth dictator of Pakistan to himself amend the constitution a relief which was not even sought. This black judgement pushed Pakistan into a blind alley. The backbone of country’s economy was broken and incompetent dictators and his associates played havoc with country’s energy and all other sectors. Pakistan became one of the leading countries worst hit by terrorism. No plans were made to meet electricity shortage and future gas requirements. Pakistan was facing 12 to 18 hours’ daily load shedding the day country got rid of the fourth dictator.