No matter how much people say how the judiciary is free now, this infamous doctrine of necessity will haunt us for ever courtesy of Justice Muneer. This is old but interesting article. Its worth reading.
http://www.rghr.net/mainfile.php/0825/1130/
THE DOCTRINE OF NECESSITY AND PAKISTAN’S POODLE JUDICIARY
Baseer Naveed, Asian Human Rights Commission, [email protected]
A retired senior judge recently told of an incident that reveals the contempt with which Pakistan’s army holds the judiciary. Justice Nasir Aslam Zahid, who had served on the Supreme Court and had been Chief Justice of Sindh, told nationwide Geo TV on June 4 that when the Supreme Court judges went to take their oath of office under the new military government in 2000, they were presented with empty pieces of paper from which to read.
The higher court judges had been ordered on January 19 to take a new oath under a provisional constitutional order, some three months after General Pervez Musharraf had taken power and scrapped the constitution. According to Justice Zahid, when they were to take the oath the following day, the registrar gave the judges blank forms from which they were to recite. Egged on by Justice Irshad Hassan Khan, who then became chief justice, they took their oaths without seeing any text. Well, at least some of them did: Justice Saeed-uz-Zaman was not among them. Army personnel had surrounded his house while a colonel kept him in his chair, and out of the bench. It seems that the army was trying to spare him the indignity of the oath-taking pantomime.
The story would be funny were it told on a comedy programme and not by a retired judge. Unfortunately, it only serves to remind us of how Pakistan’s judiciary has debased itself over the last half-century. General Musharraf may have said in recent weeks that he is “nobody’s poodle”, but there is no question that the judiciary is his poodle–or that of whichever general happens to be in power at the time.
Whenever Pakistan’s top judges have been faced with a critical decision on the constitution or military rule, they have gone to the door of General Headquarters in order to be told what to iterate in the Supreme Court. The iteration is the same, and its genesis was in a strange idea known as the “doctrine of necessity”.
In 1954, just seven years after the creation of Pakistan, Governor General Ghulam Mohammad dissolved the first constitutional assembly and the government of Prime Minister Khawja Nazim Uddin. The president of the assembly, Moulvi Tamiz Uddin, challenged him in the Sindh High Court and won: the dissolution was held to be illegal and unconstitutional. On appeal to the Chief Court of Pakistan, which was later renamed the Supreme Court, Chief Justice Munir decided in favour of the governor general. The basis for his decision was the “doctrine of necessity”: meaning that to preserve the country the constitution had to be abandoned.
From this point on, a so-called doctrine, rather than the constitution, national or international law, became the basis for every decision on the legitimacy of a military takeover. With one blow, Chief Justice Munir destroyed the foundations of constitutional rule in Pakistan. In one move, he opened wide the door for the army to walk into government any time it wanted.
It didn’t take too long for that to happen: in 1958 General Ayub Khan imposed martial law, dissolved both assemblies of parliament and abrogated the 1956 Constitution. His coup was challenged in the Supreme Court, which held–wait for it–that it was legal, in accordance with the doctrine of necessity. Thanks to this judgment, the general ruled for nearly 11 years, during which time all civil liberties were suspended.
In 1977 General Zia-ul-Haq dissolved parliament and abrogated the constitution, which had been unanimously approved by all political parties in 1973. Nusrat Bhutto of the Pakistan People’s Party, which had been in power, again went to the court for relief. Perhaps he should have known better. The chief justice toddled off to a briefing at headquarters before announcing the court’s judgment in favour of, and in front of, General Zia. The decision, needless to say, was again based on the doctrine of necessity. The military then enjoyed another 11 years of power uninterrupted by the courts. In 1979 it also used the Supreme Court to execute the former prime minister, Zulfiqar Ali Bhutto; the chief justice was again seen hanging around General Headquarters beforehand.
History and the court both repeated themselves in 2000, when Zafar Ali Shah challenged the constitutionality of the October 12 military coup of the year before. At the time that General Musharraf took power he appeared to have strong political backing. Still, when the chief justice was asked about the constitutionality of the coup, he said that any petition coming to the court would be decided on its merits. One day before the Supreme Court was due to make its decision, off he went to headquarters for a briefing. (This is the same guy who goaded bemused fellow judges with their blank slips of paper on January 20 to “hurry up, take the oath [because] we have to save the country”.) The following day the full bench judgment not only upheld the coup but went so far as to give General Musharraf unlimited power to amend the constitution as he pleased. Yes, you guessed it: the doctrine of necessity was pulled out and shook around one more time. Some in Pakistan’s legal circles claim that this decision was literally written outside the court and handed to the judges to pronounce without even having had time to read it properly.
Pakistan’s poodle judiciary has been taught and learnt its lessons well. On but a few occasions in the last half-century has the Supreme Court declined to use the doctrine of necessity, and even then the attendant circumstances have meant that its actions were meaningless. After General Ayub Khan was forced out of power by a mass movement in March 1969 he handed over the reins to the Army Chief of Staff, General Yahya Khan. A petition was filed against the transfer of power. Two and a half years later, after the general was also already removed, the Supreme Court was so brave as to declare him a “usurper” rather than invoke its favourite doctrine. Then in 1993, after the president sacked the government, the court for once decided against the takeover. However, after the decision, the army chief intervened: the prime minister “resigned” and new elections were announced. The chief justice lost his job.
Since Chief Justice Munir sacrificed constitutional law for expediency, the judiciary of Pakistan has been forced into a role not as the arbiter of justice but as the defender of the armed forces. However illegal or unconstitutional its actions may be, under the doctrine of necessity the army can do no wrong. The doctrine can at any time be used to throw out an elected government and keep the constitution in abeyance. Under these circumstances, the people of Pakistan can only ask, what is the point of an election or a constitution at all?
By subordinating itself to the military, Pakistan’s judiciary long since passed over the threshold of reality and into a fantasy land. It is a land in which you can read other people’s judgments as if they are your own. It is a land in which you can swear on a spotless piece of paper. It is a land in which you must wear a blank expression and carry around an empty mind. It is a land in which the law exists in a vacuum.
Perhaps we should feel sorry for Pakistan’s judges for having lost their dignity to the country’s generals. Perhaps they only have themselves to blame. The problem is that because of their failings, because of their misinterpretations, and because of their stupid doctrine, millions of others have lost far more: their lives, their homes, their hopes, their democracy, their human rights, their country. And it is for this that Pakistan’s poodle judiciary must ultimately be held responsible.
