LEGALIZING THE ILLEGALITY: RE-INCARNATION OF DOCTRINE OF NECESSITY IN NUSRAT BHUTTO CASE[1]
by Tipu Salman Makhdoom
INTRODUCTION:
Doctrine of State Necessity was first adopted by the Supreme Court of Pakistan[2] in the first decade of creation of Pakistan; validating the extra-Constitutional steps of Governor General of Pakistan. Before expiration of another two decades, this doctrine was overruled[3] by the Supreme Court. However, when General Zia ul Haq imposed Martial Law in 1977, Supreme Court distinguished the overruling Asma Jilani’s[4] case and relying on the earlier case of Special Reference of 1955[5], legalized the imposition of Martial Law[6], on the basis of Doctrine of Necessity.
CIRCUMSTANCES LEADING TO MARTIAL LAW OF 1977:
Before the imposition of the Martial Law in 1977, Pakistan was facing quite a serious condition of law and order. The country wide agitation including the use of violence and show of street power had totally undermined the governmental writ throughout the country and had disturbed the daily life of the citizens[7]. The clash between the PPP[8] and PNA[9] had polarized the nation, destabilized the state and ruined the economy[10].
The reason of all this upheaval was that elections for the National Assembly and the four Provincial Assemblies were scheduled to be held on 7th and 10th of March 1977 respectively and according to the results of first phase, PPP had attained overwhelming victory. PNA rejected these results as massively rigged, boycotted the second phase elections for Provincial Assemblies and started street agitation[11].
IMPOSITION OF MARTIAL LAW:
In the early hours of 5th of July, 1977, Army Chief General Muhammad Ziaul Haq took over the state administration. Bhutto along with other prominent leaders, was placed under protective custody and, unlike the previous two Martial Laws, when the Constitution had been abrogated, this time the Constitution of 1973 was held in abeyance[12]. For the administration of the country, a Military Council was set up which consisted of Senior Generals of Pakistan Army assisted by senior civilian bureaucrats[13]. Chief Martial Law Administrator, General Ziaul Haq (1924 -1988), claimed that he had taken over the country so that army could act as a neutral force between the PPP and PNA, hold the free, fair and peaceful elections within ninety days and retire to the barracks; and that he has done all this as a true soldier of Islam[14].
ARREST OF BHUTTO:
On 28th of July, 1977, Bhutto and other leaders were released. However, scared of popularity of Bhutto, General Ziaul Haq arrested him again on 3rd of September, 1977 on charges of murder of Nawab Muhammad Ahmad Khan[15]. On 13th of September, 1977, Bhutto was granted bail from the Lahore High Court. On 17th of September, 1977, Bhutto was arrested once again; this time under a martial law order[16].
ADMISSION OF NUSRAT BHUTTO CASE AND RE-COMPOSITION OF SUPREME COURT:
Nusrat Bhutto[17] moved Supreme Court against the detention of Bhutto. The matter came up for hearing for the first time on 20th of September, 1977 when the Chief Justice Muhammad Yaqub Ali Khan admitted the petition and adjourned it for 25th of September. General Zia retaliated by issuing a CMLA’s[18] order dated 22nd of September, 1977, as a result of which Chief Justice Yaqub stood retired and Justice Anwar-ul-Haq became Chief Justice[19]. Supreme Court, instead of resisting or reacting to this attack on its independence by CMLA, welcomed the same thereby supporting the Martial Law[20].
THE CASE:
A long debate on application of Hans Kelsen’s Pure Theory of Law took place wherein Kelsen had opined that:
Even a government that comes to power by revolutionary means or a coup d’etat is to be regarded, in terms of international law, as a legitimate government if it is capable of securing continuous obedience to the norms it issues[21].
The Court, however, refused to base its decision on Pure Theory of Law[22] and held that it is defective as it excludes sociological factors of morality and justice.
The Court however validated the Martial Law on the basis of doctrine of necessity, by distinguishing its earlier rejection of the Martial Law in Asma Jilani’s[23] case and relying on the Reference case of 1955[24]. The Chief Justice S. Anwar ul Haq in its leading judgment held:
A review of the concept of the law of necessity, as recognized in various jurisdictions, clearly confirms the statement made in this behalf by Muhammad Munir, CJ. in Reference by H.H Governor General, PLD 1955 FC 435 to the effect that an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution. The principle has been reiterated by the Supreme Court in Asma Jilani’s case with the difference that where the Court is dealing with the acts of a usurper, such acts may be condoned and not validated by the application of the law of necessity[25]. It seems to me, therefore, that on facts, of which we have taken judicial notice, namely; that the imposition of Martial Law was impelled by high considerations of State necessity and welfare of the people, the extra-constitutional step taken by the Chief of the Army Staff to overthrow the Government of Mr. Z.A. Bhutto as well as the Provincial Legislatures stands validated in accordance with the doctrine of necessity[26].
As a consequence of this unanimous verdict, imposition of Martial Law was declared validated on the doctrine of necessity and Begum Nusrat Bhutto’s petition challenging detention of Bhutto was dismissed as incompetent[27].
CONCLUSION:
Dosso’s case[28], validating over-throw of the Constitution on the basis of Kelsen’s Pure Theory of Law [29]was a major set-back to the Rule of Law jurisprudence being developed in the Constitutional Democracies. In contrast, Asma Jilani’s[30] case declared the imposition of Martial Law as illegal. To say the least, it was a breath of fresh air in the development of Pakistani jurisprudence. However, Nusrat Bhutto case[31] was seen as a disaster to such development. Critics have dumped Nusrat Bhutto case as an un-justifiable justification for legalizing the illegal act of over-throwing a Democratic Constitution by force of gun. Theoretically this is undeniable. And condemnable! However, if we see it in a larger perspective, and bound to the ground realities, we must appreciate that this judgment did not revive the Kelsen’s theory for justifying a forcible over-throw of Constitutional Government on the basis, simply, of its efficacy. On the other hand, it validated the Martial Law on the basis of special facts and circumstance of the case i.e., break-down of Constitutional machinery. This way, Court was successful in retaining its jurisdiction of reviewing the acts of over-throwing of Constitution[32]. This was a leap forward. It was in the continuation of this ratio that we see that in the next coup d’etat[33], the Court went a step further and although validated the imposition of Martial Law, yet placed a condition of specific time frame on the Martial Law Administrator for restoration of Democracy. This time-frame was obeyed and the Democracy was restored. Thus we can safely conclude that Nusrat Bhutto case was a step forward in developing a jurisprudence whereby Supreme Court of Pakistan established its jurisdiction over the acts of Martial Law Administrators, who are, consequently, being tamed and placed under constraints of rule of law; although step by step!
[1] Begum Nusrat Bhutto v The Chief of the Army Staff [1977] PLD 657, PLD 1977 SC 657
[2] Special Reference No. 1 of 1955 [1955] PLD 435, PLD 1955 FC 435
[3] Miss Asma Jilani v Govt. of the Punjab [1972] PLD 139, PLD 1972 SC 139
[4] Ibid
[5] Supra, note 2
[6] Supra, note 1
[7] Fayyaz Ahmad Hussain & Abdul Basit Khan, ‘Role of the Supreme Court in the Constitutional and Political Development of Pakistan: History and Prospects’ [2012] Journal of Politics and Law 83
[8] Pakistan Peoples’ Party, the political party headed by Zulfiqar Ali Bhutto in 1977
[9] Pakistan National Alliance, the alliance of the opposition parties staging protests against the PPP
[10] M.R. Kazimi, A Concise History of Pakistan (OUP 2009) 235
[11] Supra, note 7, 83
[12] Hamid Khan, Constitutional and Political History of Pakistan (OUP 2001) 579
[13] Prof. Rafi Ullah Shehab, Fifty Years of Pakistan (Maqbool Academy Lahore, 1990) 295
[14] Supra, note 10, 235
[15] This murder was committed on 10th of November, 1974 and Bhutto was nominated in the FIR since day one.
[16] Supra, note 12, 582
[17] Wife of Zulfiqar Ali Bhutto
[18] Chief Martial Law Administrator
[19] Supra, note 12, 584
[20] Supra, note 12, 584
[21] Hans Kelsen, Introduction to the Problems of Legal Theory [A Translation of the First Edition of the Pure Theory of Law] (Clarendon Press Oxford 1992) 61
[22] ibid
[23] Supra, note 3
[24] Supra, note 2
[25] As the judgment in Asma Jilani’s case was delivered after the lifting of Martial Law and restoration of democratic rule.
[26] Barrister A.G. Chaudhry, The Leading Cases in Constitutional Law (Sahar Publishers 1994) 60
[27] Supra, note 12, 592
[28] The State v. Dosso [1958] PLD 533, PLD 1958 SC 533
[29] Lord Lloyd of Hampstead, Introduction to Jurisprudence (4th ed. London Stevens & Sons 1979) 283.
“So far as the legal system is concerned this basic norm must be extra-legal, since ex hypothesi it does not rest upon another legal norm. But keelson is at pains to point out that the choice of the basic norm is not arbitrary. On the contrary it must be selected by the legal scientist on the principle of efficacy, that is to say that the legal order as a whole must rest on an assumption that is by and large efficacious, in the sense that in the main people do conduct themselves in conformity with it.”
[30] Supra, note 3
[31] Supra, note 1
[32] According to a contemporary theory of juristocracy, this is a phenomenon which is universal to all Constitutional Democracies having a bill of rights ensured to its citizens as their fundamental right. cf Ran Hirschl, The New Constitution and the Judicialization of Pure Politics Worldwide, 75 Fordham L. Rev. 721 (2006)
[33] Syed Zafar Ali Shah v. General Pervez Musharraf [2000] PLD 869, PLD 2000 SC 869
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