The doctrine of necessity - Ikram Sehgal - Thursday, April 28, 2011

On the assassination of Prime Minister Liaquat Ali Khan Shaheed in October 1951, Governor General Khwaja Nazimuddin was convinced by the bureaucracy that it would be extremely beneficial for the country if he became prime minister. Thus a politician was replaced by a bureaucrat. Ghulam Muhammad cleverly eased into the driving seat. Less than two years later the Prime Minister Nazimuddin found himself out in the cold, summarily sacked by the governor general. Using extra-constitutional emergency powers, he dissolved the country’s Constituent Assembly in 1953 and appointed a new Council of Ministers on the grounds that the Constituent Assembly no longer represented the people. Chief Justice Munir validated the governor general’s extra-constitutional action in 1954 using the maxim: “That which is otherwise not lawful is made lawful by necessity.” Thus the “Doctrine of Necessity” was invoked for the first time to legalise an extra-constitutional action.

Since 1954 it has been repeatedly used to define and validate extra-constitutional issues that fall outside the purview of the Constitution but are necessary to preserve political stability. The doctrine creates controversy as it legally justifies abandonment of the Constitution in order to preserve the country. The government in power can do no wrong, no matter how illegal or unconstitutional its actions may be. In a historic 2010 judgment the Supreme Court buried this doctrine forever. Or has it really?

Rather than the Constitution, national or international law, this so-called doctrine, which was first used by the civilian bureaucracy and not the military as is the general perception, became the basis subsequently for every judicial decision about the legitimacy of a military takeover. No one seems to remember that after first applying it in 1953, bureaucrat Ghulam Mohammad and then Iskander Mirza, the bureaucrat who replaced Ghulam Mohmmad as governor general used their powers arbitrarily nearly half a dozen times to sack their appointed prime ministers. Iskander Mirza, who then became president in 1956, was also the first to impose countrywide martial law. In October 1958 Mirza dissolved parliament and abrogated the 1956 Constitution. When he tried to be clever and oust the army chief Gen Ayub Khan, he was himself ousted 20 days later. The common perception remains that the army orchestrated the destruction of the foundations of constitutional rule in Pakistan so that it could walk into government anytime it wanted.

In 1969, Yahya Khan became the second commander-in-chief to impose martial law. In 1977 Gen Ziaul Haq dissolved parliament and abrogated the Constitution of 1973. History was repeated in 2000 when the full bench of the Supreme Court not only upheld the 1999 coup by Musharraf but went so far as to give the COAS unlimited powers to amend the Constitution as he pleased. Perhaps the most blatant exploitation of the doctrine in our history. The sorry fact remains that the state of the country was such that rather than protesting, the people welcomed the army intervention and the legitimisation of the coup.

Politically necessary in some situations, as was clearly the general public demand in 1999, the doctrine can never be seen as the best solution and has led to the violation of the rule of law and human rights. Every government has used it as a political weapon to either intimidate their opponents or repress the rule of law by using extra-constitutional means.

Pakistan has a long history of “regularisation” and “legalisation” and plea bargaining, which constitutes an unofficial application of the doctrine. Plea bargaining has seen many looters of the national till getting away with no punishment. It proves that crime pays. Black money is whitened, smuggled cars are regularised, illegal appointments are regularised, tax evasions are condoned, unauthorised buildings are legalised, land-grabbing is regularised, illegal weapons are legalised when that suits these power brokers. Thus, what is illegal today will be legal tomorrow as regularised by the blackest of black laws, the Musharraf enacted the National Reconciliation Order (NRO) in 2007. That black law encapsulated the culture being practiced today. It assures the lawbreakers that even if they are caught, they will not be punished.

The problem is that politicians use diversionary tactics – e.g., the Sindh card that encourages questioning the authenticity of the only agreed-upon document, the Constitution of Pakistan. We are at serious risk of putting our sovereignty and national integrity at stake. As a very fragmented nation today, we have failed to achieve consensus on such minor issues as water distribution and building of water reservoirs. Many other issues have been allowed to linger on and on by filibustering politicians and their cronies because it suits them to do so.

Muammar Qaddafi ruled Libya for over four decades with an iron hand. Hosny Mubarak of Egypt and Zine al Abedine Ben Ali of Tunisia also ruled for decades. When protests erupted, what stance did the international community adopt but to support the people in the streets rather than the despots who ruled, using the Constitution as a fig leaf supporting their “legitimacy”? Despite the legitimacy derived from the present Libyan constitution, the Doctrine of Necessity has been resorted to by the international community by enlarging the scope of the UN mandate of a “no-fly zone” to interdict Qaddafi’s forces attacking the civilian population indiscriminately and save the hapless population from the excesses of a madman.

To satisfy the exigencies which have been created by certain situations outside the contemplation of the Constitution or the rule of law, the significant feature of the doctrine is the deliberate circumvention of the Constitution or some aspects of the rule of law in order to get out of the political quagmire. Put simply, to “save” the country the Constitution has had to be dumped repeatedly and the rule of law has to be sidelined. Yet it is a political arrangement that has garnered some form of legal validation and global support. English and American courts have long recognised the defence of necessity. Historically, courts have applied the necessity defence almost exclusively to situations in which the actor faced imminent death or bodily harm to himself or a third person.

Contrary to the general perception the Doctrine of Necessity is noble when properly used and valuable when rarely applied. Notwithstanding the fact that its application does become necessary sometimes, the doctrine goes wrong when those that apply it forget that their role is limited, to support technocratic governance for a short period and not become a part of it. When soldiers become part of the wrong they came to correct, they force-multiply the wrongs into a catastrophe, like Musharraf eventually did. The common belief is that all human endeavours are controlled by law and every human act is determined by law, it must not be assumed that all acts of man are contemplated by law. Therefore, certain acts, though harmful and seemingly unconstitutional, might be necessary in order to avert a greater harm. Where is that failsafe line which separates the Doctrine of Necessity from that of “absurdity”?

The writer is a defence and political analyst. Email:

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