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
