Dr Reeza Hameed: Constitution Changes – Points to Ponder

Originating in the works of Henry de Bracton and William Blackstone, the doctrine of necessity has plagued Pakistan’s history and M Munir CJ has rightly been labelled “the destroyer of democracy in Pakistan”. From that perspective, the doctrine of necessity will never get stale in Pakistan’s history. To be sure, our country has, through its law courts, which ought to have protected democratic virtue but opted to fall into despotic vice, set unparalleled standards for venality by being the first free nation to apply “the doctrine” to murder democracy in its nascency. In this old post from the archives, our friend Dr Reeza Hameed, examines the extension of the doctrine to Sri Lanka and we are grateful to him for his contribution to our blog. His article, which also analyses the case of Pakistan, follows below.

The government has claimed that it has a mandate from the people to implement its manifesto promise to convene a constituent assembly consisting of the members of parliament to formulate and promulgate a new constitution, that will derive its form and validity from the expression of the political will of the people and that the proposed constitution will strengthen democracy by abolishing the executive Presidency and replacing it with a Cabinet and the doctrine of necessity and Kelsen’s theory of pure law have been pressed into service to support the introduction of a constitution outside the framework of the 1978 Constitution. The 1978 constitution should not be replaced or amended otherwise than in accordance with its own provisions. Neither the doctrine of necessity nor Kelsen’s theory provides the judicial basis to legitimise changes to the 1978 Constitution by extra-constitutional methods. These doctrines have virtually become a favourite device of military backed rulers to justify their actions whenever they toppled elected governments and imposed martial law. They do not provide an acceptable basis for constitutional change in a democratic country.

Case of Pakistan

The dangers inherent in adopting either of these theories to legitimise changes to the basic structure of a legal system would be evident to any observer of Pakistan’s constitutional history. The judiciary there has lent its authority and support to the military whenever the latter grabbed power from popularly elected governments under some pretext of expediency or need. It has been done with such regularity that critics have charged that the judiciary is part of a military-judiciary complex. This trend was set in motion by the Supreme Court in the 1958 case of The State v Dosso.

The Court in Dosso came to the military’s rescue by giving its seal of approval to General Mirza‘s action to dissolve parliament contrary to the constitution. The Court relied on Kelsen in support of its decision. In fact the Court’s judgement paved the way for Ayub Khan who took over control the day after its decision was announced. Ayub Khan gave way to Yahya Khan. Ayub Khan did not transfer power to the National Assembly in accordance with the 1962 Constitution but handed over power to Yahya Khan who promptly abrogated the constitution and imposed martial law. His assumption of office was challenged in Asma Jilani v The State of West Punjab. In that case the Supreme Court overruled Dosso as wholly unsustainable. In Asma Jilani the Court latched on to the doctrine of necessity to legitimise Yahya Khan’s actions.

Justice Hamoodar Rahman applied the doctrine to circumstances where, in his view, ignoring it would have resulted in disastrous consequences to the body politic and upset the social order itself; but he also said that the doctrine cannot validate the illegal act of an usurpers. The declared objective of martial law was to create conditions suitable to hold free and fair elections and to return the country to a democracy.

Yahya Khan handed over power to Zulfikar Ali Bhutto only when his position became untenable with the secession of East Pakistan but Zia ul Haq toppled Bhutto some years later with the declared purpose of restoring law and order. When a challenge to the martial law regime imposed by General Zia was made by Begum Nusrat Bhutto the Supreme Court of Pakistan said that the judges were the custodians of the social order and declared that the doctrine of necessity shall not take away its function of judicial review. Despite making such grand declarations the Court validated General Zia actions by repeating the mantra of necessity.

After Begum Nusrat Bhutto’s petition had been admitted the then Chief Justice Yaqub Ali, one of the judges in the Asma Jilani case, was abruptly retired and General Zia promulgated an order that required the judges of the Court to take a new oath. Years later another Chief Justice of Pakistan recounted that he saw Chief Justice Yaqub Ali depressed after a visit from General Zia soon after the latter had imposed martial law. It does not require much to guess the purpose behind General Zias visit. In Begum Nusrat Bhutto v Chief of Army Staff, the Court rationalised its decision alleging that mass agitation had resulted in a total breakdown in government machinery and took comfort in the fact that the military would go back to the barracks as soon as law and order were restored.

Despite such expectations the country continued under martial law for many years. Pakistan came to be run by General Musharraf who took control of power in 1999 by getting rid of an elected assembly. The Court endorsed his takeover and gave him breathing space for three years to allow him to bring the country back to normalcy. Yet he remained firmly in the saddle for much longer.

As a matter of fact, three years later Musharraf held a referendum to extend his tenure for a further five years. When the order promulgating the holding of a referendum was challenged, the Supreme Court rejected it saying that the order was not in breach of the Constitution because Musharraf was not acting in terms of the Constitution and that it was made pursuant to Musharraf’s own proclamation that had been previously validated by the same court. Of late, pronouncements have been coming down from the Supreme Court warning of the dangers of relying on the doctrine of necessity. In Liaquat Hussain’s case (1999) Justice Irshad Hasan Khan said that if approved it may frequently be resorted to at the incidence of a situation presently prevailing in the country, by the executive.

In fact, such approval whereby the executive is allowed to cross the barriers of constitutional provisions at its whim, would turn a democratic rule into a despotic one. Clearly any deviation from the Constitution may lead to anarchy. In a more recent case the Supreme Court referred to the mess Pakistan is in when it said that after 54 years of the creation of our country, we are again at the crossroads. In fact, we must observe that we have miserably failed to evolve a system of governance, transfer of power and to follow the constitutional path for achieving the welfare of the people and establishment of democratic institutions as envisaged by the Constitution.

Limits to the Doctrine of Necessity

The doctrine of necessity cannot be used to scrap a constitution or to repeal a part. In those instances it has been invoked successfully the doctrine of necessity has been used only to uphold the rule of law rather and not to abrogate the existing constitution. Most of all there is no justification to apply the doctrine to deviate from a constitution such as ours that is founded on the will of the people. In the Cyprus case of Mustafa Ibrahim v. the Attorney General (1964), Justice Josephides made it clear that “(t)he less a constitution represents in fact the exercise of the original right of the people the more the Legislature ought to be treated as free to meet the necessities.”

The Cyprus constitution was not the product of the will of the people of an independent Cyprus but was the product of an international agreement signed in Zurich at which no Cypriots took part. It was never ratified by an unfettered expression of judgment on behalf of the people of Cyprus, after it had become independent. The court also stated that the source of the doctrine is the principle expressed in the maxim salus populi est suprema lex. The law was enacted when there was a serious danger of law and order breaking down and a government unable to govern and it was necessary for the state to function.

To Justice Triantafyllides the doctrine of necessity in public law is in reality the acceptance of necessity as a source of authority for acting in a manner not regulated by law but required, in prevailing circumstances, by supreme public interest, for the salvation of the state and its people. The law in question was passed when the Turkish minister and members of parliament had boycotted parliament and kept away from their offices and the institutions of government were left in a state of deadlock. The Supreme Constitutional Court and the High Court could not function because the heads of those bodies had resigned.

The House of Representatives enacted a law that established, among other things, a new Supreme Court to which it transferred the powers of the two courts. The Supreme Court found that the preservation of the social order necessitated that the law should be upheld even if it failed to conform to the requirements of the constitution. A fundamental flaw with the decision in Moustafa Ibrahim is that it drew on the analogy of the defence of necessity as known to criminal law to formulate the doctrine of necessity but it failed to satisfactorily explain how this principle of criminal law could be canonised into a principle of constitutional law.

Proposed Changes not temporary

The changes proposed by the government are not intended to have a temporary shelf life and the doctrine of necessity cannot be a launching pad to make permanent changes. In Moustafa Ibrahim it was intended that the doctrine would apply only in the most extreme of circumstances. The court specified the following criteria for the doctrine to apply: (a) an imperative and inevitable necessity or exceptional circumstances; (b) no other remedy to apply; (c) the measure taken must be proportionate to the necessity; and (d) it must be of a temporary character limited to the duration of the exceptional circumstances.

The last point was emphasised in Republic of Fiji v Chandrakant Prasad (2000) where the Court of Appeal in Fiji rejected the use of the doctrine of necessity. The Court said: The doctrine of necessity enables those in de facto control, such as the military, to respond to and deal with a sudden and stark crisis in circumstances which have not been provided for in the written constitution or where the emergency power machinery in that constitution was inadequate for the occasion. The extra-constitutional action authorised by that doctrine is essentially of a temporary character and it ceased to apply once the crisis has passed.

As Justice Gates of the Fiji High Court in Chandrakant Prasad stated, once the crisis at hand had been resolved the Constitution previously temporarily on ice or suspended, would re-emerge as the supreme law demanding support and that of the military to uphold it against any other usurpers. The same judge warned in another case that there is a danger in allowing the doctrine of necessity to degenerate into a doctrine of convenience, a doctrine to avoid awkward or embarrassing situations. This is not the doctrine of necessity.

The Fiji Court of Appeal (following Mitchell v DPP 1986) added a further condition to the criteria set forth in Moustafa Ibrahim, namely that the law in question must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such. The Court found that Commander Bainimarama had a genuine desire to remove the Fiji constitution and therefore it refused to declare that his actions were necessary. The Court noted: The doctrine of necessity does not authorise permanent changes to a written constitution, let alone its complete abrogation. The argument based on Kelsen that a new constitution may be enacted by a constituent assembly without recourse to the procedure prescribed by the 1978 Constitution is of doubtful validity.

Although in some instances Kelsen’s theory was used to legitimise an otherwise illegitimate regime it was discredited even by the Pakistani Supreme Court in Asma Jilani. In that case – and in the later case of Begum Nusrat Bhutto – the Supreme Court said that it was not possible to apply Kelsens doctrine to recognise a government that was otherwise unlawful.

General Yahya Khan was termed a usurper and all actions taken by him except those in the welfare of the people were declared illegal. Justice Yaqub Ali lamented that because of the decision in Dosso a perfectly good country was made into a laughing stock. A country which came into being with a written Constitution providing for a parliamentary form of Government was soon converted into an autocracy and eventually degenerated into military dictatorship.

The Court in Dosso had said that a victorious revolution or a successful coup detat was a recognised legal method of changing a constitution and, if such a change were to occur, the national legal order must for its validity depend upon the new law creating organ. In Asma Jilani the Court did not believe that Kelsen set out to lay down a legal norm. Nor did it find that Kelsen’s was a generally accepted doctrine. It was not a rule of law and it was no more than an enunciation of legal theory.

Justice Yaqub Ali’s critique of this proposition is worth noting:

Kelsen invests revolutionary government with legal authority on the basis of a pre-supposed norm that the victorious revolution and successful coup d’état are law creating facts. This is in the realm of theory and not part of the national legal order of any state. No municipal court will, therefore, rely on it as a rule. It is a statement of law by Mr Kelsen to which a large number of jurists have taken exception. What Kelsen has said about the legitimacy of norm and legal authority of a revolutionary government must be read separately and not mixed up. While revolution may destroy the existing national legal order because after the change the reality of the State has disappeared from behind that order, it does not follow that the legal order, which replaces it, is the expression of the superior will of one or more of the revolutionaries. Kelsen’s theory regards might as right. A theory that rewards force at the expense of principle cannot be a right foundation for a constitution that claims to encapsulate the sovereign will of the people.

The argument that the principle of efficacy requires only a minimum support to give the new basic norm its validity and that it is not necessary to find efficacy on any extraneous factor such as consent can no longer be run as a result of the Fiji case of Chandrakant Prasad where the Court of Appeal refused to find that the there had been a successful revolution because the usurper had failed to suppress public opposition and convincing evidence of real acquiescence was absent. The Court insisted that the burden of proving that the existing constitution had been superseded lay on the usurper and put him to a very high standard of proof. In the event the Court declared that the purported abrogation of the 1997 Constitution of Fiji was not justified and that it remained in place.

Constitution is Supreme

The constitution is the basic norm in our legal system and it is the supreme law of the land. This was recognised in the case of Walkers & Sons & Co (U.K.) Ltd v Gunatilake where the Supreme Court said:

The constitution is a manifestation of the sovereign will of the people.

The same principle was at the foundation of the 1972 constitution and the 1972 derived its legal validity from the fact that it was enacted within the legal framework of the 1972 constitution. It has been suggested sometimes that the setting up of a constituent assembly would accord with Article 3 of the constitution because the people who hold sovereign power have the power to constitute a constituent assembly.

This argument is an oxymoron because what is being proposed is to introduce a constitution other than by a process demanded by them under the Constitution. The Sri Lankan Constitution vested the sovereignty of the people in three organs and defined their respective powers as well as the limits of those powers. The people set restraints on their own power to interfere with their delegates and did not give themselves the power to initiate or enact legislation except through their elected representatives.

Even in those instances when their consent is required, as when a law has to be approved in a referendum, their delegates must formulate that legislation and at least two thirds of them must approve it before their consent is sought. The people have set limits on the ability of their delegates to approve changes to the constitutional scheme by anything other than a special majority. This must be to ensure that measures enacted by them met with the approval of a sufficient number among them so as to reflect the opinion of a broad cross section of the population. The people in whom the sovereignty is vested do not belong to any one party, and neither Parliament nor a body outside representing only a bare majority can claim to exercise the power of the people to change the constitution. The argument that it is impossible for a single party to attain a two thirds majority under the prevailing electoral system and therefore it should be possible for the government to change the constitution even with a bare majority is one of convenience.

It has not been suggested that the want of a two thirds majority has rendered the government powerless to maintain law and order or to carry on with the business of governing the country. There is no reason why the majority required for change should all come from the same side of the House. A government might find it convenient to have at its disposal a majority that would rubber stamp its proposals but the desirability of having a system that would produce such majorities is open to debate.

Constitutional change must be underpinned by a process that maximises consensus and secures the consent of the majority and the minority elements within the country. It should be preceded by a well informed debate. The process is as important as the outcome. Any attempt to follow the Navarangahala route to impose a constitution outside the framework of the 1978 Constitution would create a dangerous precedent. It would be a recipe for chaos. If the argument for extra constitutional change is accepted, it would be possible for a government without the required majority to embark on constitutional change- with or without a mandate.

Editing and links by Editor, Pakistan Horizon, email: pakistanhorizon@hotmail.co.uk

6 Comments

Filed under Constitution 1973, Dr Reeza Hameed, Europe, Legislation, Pakistan, Sri Lanka

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