Shahid Batalvi Speaks

with apology to Black Elk for he speaks first

Doctrine of State Necessity: Ghulam Mohammad’s need, Muhammad Munir’s invention

with 5 comments

 
Need is truly the mother of invention.
In this case it was the invention of the "Doctrine of State Necessity".
 

The term Doctrine of Necessity is used to describe the legal basis for a controversial 1954 judgment in which Pakistani Chief Justice Muhammad Munir validated the extra-constitutional use of emergency powers by Governor General, Ghulam Mohammad. In his judgment, the Chief Justice cited Bracton’s maxim, ‘that which is otherwise not lawful is made lawful by necessity’, thereby providing the label that would come to be attached to the judgment and the doctrine that it was establishing.

Contrary to popular belief, this nonsense is not a legal doctrine but rather a political doctrine. In order to justify, legitimize and validate the dismissal of Prime Minister Khawaja Nazimuddin’s government by Governor General Ghulam Mohammad in 1954, Chief Justice Mohammad Munir created the framework of the Doctrine of State Necessity. It was at this point, that the ruling of the Chief Court, to be later renamed as the Supreme Court of Pakistan, allowed the proverbial camel to stick his head into the tent.
 
Maulvi Tamizuddin Khan created history when the Constituent Assembly was dismissed by Governor General Ghulam Mohammad. Tamizuddin challenged the dismissal in the court. D. N. Pritt represented Maulvi Tamizuddin Khan. Ijaz Batalvi used to work in Pritt’s chambers in London after getting his silk from Lincoln’s Inn in 1953. He accompanied Pritt and supported him in the arguments of the case. Pritt won the case at the Sindh Court but, but when the state went in appeal, Tamizuddin ran out of money and could no longer pay Pritt’s fee. Pritt offered to waive his fee but Maulvi Tamizuddin couldn’t even pay his boarding and lodging during the appeal hearing. The Federal Court under Justice Muhammad Munir upheld the dismissal. Justice A. R. Cornelius was the sole dissenting judge in the landmark judgment handed down by the Federal Court in the Maulvi Tamizuddin case. That judgment altered the course of politics in Pakistan forever and sealed the fate of democracy.
 

After this ruling in 1954, whenever elected governments are overthown by the act of martial law, extraconstitutional actions of the armed forces are legitimized by the judiciary through the Doctrine of State Necessity. It is a doctrine that is based on the idea that it is legally justifiable to abandon the constitution in order to "save" the country. These extraconstitutional actions may include suppression of basic human rights, illegal arrests and detentions as well as torture, abductions, forced disappearances, denial of press freedom, the right of assembly and many other such acts. Other actions undertaken by a military regime to improve the "well being" of the nation still do not justify the fact that the establishment is standing on an edifice that has abgrogated (legal terms such as abeyance are for naught) the constitution of the country and disregards fundamental rights of citizens as a mere nuisance. The constitution of a country is not a buffet where you can pick and choose which articles and clauses can simply be held in abeyance for an indefinite period of time or for that matter any period of time.

 
Under the 1973 Constitution of Pakistan, the Members Of The Armed Forces take the following oath:
[Article 244] In the name of Allah, the most  Beneficent, the most Merciful. I, ____________, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. May Allah Almighty help and guide me (A’meen).
A martial law fundamentally constitutes an act of treason that is committed by every officer and soldier of the armed forces who knowingly become party to this act.
 
 
 
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Written by Shahid Batalvi

April 30, 2009 at 12:23 pm

Posted in Analysis

5 Responses

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  1. Shahid, is the "Doctrine of State Necessity" as articulated by the Supreme Court of Pakistan what in the US is called "Dictum" or a direct proclaimation of law. It certainly looks to me as if the Judges were writing law rather than interpreting it. Does Pakistan have a separation of powers doctrine?When Pervez Musharraf took power in his coup d\’état in 1999 was this doctrine somehow codified into law? Clearly something had changed between 1954 when the doctrine first appeared as dicta because in 2007 Musharraf was apparantly convinced he would not win in the action before the Supreme Court challenging his authority.Do you think the same theory underlies the Bush Administration\’s executive power belief – it seems to be a combination of the Doctrine of State Necessity and the Nixon Doctrine (it is legal because the president says it is)?If you have not read the IRCC "Torture Report" take a peep – as I read it I was struck by how dangerous it is to suspend or reconstruct the Constitution in the name of expediency and "state necessity" The danger is evident when some of the most civic minded and well educated men and women in the country can, in the matter of a few months, come to believe that the behavior described in the IRCC report was not only justified but morally acceptable and legal. http://www.nybooks.com/icrc-report.pdf

    Daryl

    May 4, 2009 at 12:56 pm

  2. Hi Daryl,The Doctrine itself cannot be codified into law or for that matter into the constitution since it tries to contravene the constitution.Read below:The independence of the judiciary was largely undermined by the order by General Musharraf in January 2000 that Pakistani judges take a fresh oath of loyalty to his administration. In May 2000, the Supreme Court, reconstituted after the dismissal of six judges who refused the oath, upheld General Musharraf\’s military coup of 1999, under the doctrine of state necessity.Pakistan is a constitutional republic. On 15 October 1999, the Government promulgated the Provisional Constitution Order, (PCO), No.1 of 1999, overriding the 1973 Constitution of the Islamic Republic of Pakistan, previously suspended following the 12 October 1999 military coup led by General Pervez Musharraf. The PCO provided for the suspension of the National Assembly, the Provincial Assemblies and the Senate and mandated General Musharraf to serve as the new Chief Executive. On 20 June 2001, General Musharraf became President of Pakistan after dismissing the incumbent President, Muhammad Rafiq Tarar. On 12 May 2000, the Supreme Court validated the October 1999 coup under the doctrine of state necessity. However, the Court ordered that the Government hold national and provincial elections by 12 October 2002. In response, President Musharraf presented a four-phase programme aimed at returning the country to democratic rule, with local elections to be held from December 2000 until August 2001. Subsequently, a series of local elections were held in December 2000, March 2001, May 2001 and July-August 2001. However, political parties were prohibited from participating in the contests and party leaders were disqualified from holding political office. The above is a standard operating procedure followed in Pakistan at the time of all military coup d\’etat.I have not read the IRCC report but have read recent statements of inviduals who have tried to justify described actions under "state necessity".

    Shahid

    May 4, 2009 at 1:42 pm

  3. Interestingly, here is the definition from Wikipedia:Doctrine of necessity is a phrase commonly used to refer to a controversial judgment in 1954 by Justice Muhammad Munir to validate Ghulam Mohammad, the Governor General of Pakistan\’s, use of non-constitutional emergency powers.On October 24, 1954 Ghulam Mohammad, the Governor General of Pakistan dissolved the Constituent Assembly and appointed a new Council of Ministers on the grounds that no longer represented the people of Pakistan. Stanley de Smith argues that the real reason for the dissolution was because Mohammad objected to the constitution which the Assembly was about to adopt.[1] The President of the Constituent Assembly, Maulvi Tamizuddin, appealed to the Chief Court of Sind at Karachi to restrain the new Council of Ministers from implementing the dissolution and to determine the validity of the appointment of the new Council under Section 223-A of the constitution. In response, members of the new Council of Ministers appealed to the court saying that it had no jurisdiction to approve the request of the President to overturn the dissolution and appointments. They argued that Section 223-A of the constitution had never been validly enacted into the Constitution because it was never approved of by the Governor-General, and therefore anything submitted under it was invalid. The Chief Court of Sind ruled in favour of President Tamizuddin and held that the Governor-Gerneral\’s approval was not needed when the Constituent Assembly was acting only as a Constituent Assembly and not as the Federal Legislature.[2] The Federation of Pakistan and the new Council of Ministers then appealed to the court, the appeal was heard in March of 1955 (Federation of Pakistan v Moulvi Tamizuddin Khan).In the appeal hearing under Chief Justice Muhammad Munir, the court decided that the Constituent Assembly functioned as the \’Legislature of the Domain\’ and that the Governor-General\’s assent was necessary for all legislation to become law. Therefore, the Chief Court of Sind had no jurisdiction to overturn the Governor General\’s dissolution and it was held as valid.However, the ground of which the court found in favour of the Federation of Pakistan called into question the validity of all legislation passed by the Assembly, not to mention the unconstitutionality of the Assembly itself since 1950. In order to solve this problem the Governor-General invoked Emergency Powers in order to retrospectively validate the Acts of the Constituent Assembly. An appeal was filed against the Governor-General for invoking emergency powers and the Chief Justice had to determine the constitutionality of invoking the Emergency Powers and whether the Governor-General could give his assent to legislation retroactively. [3]The Court held that in this case the Governor-General could not invoke emergency powers because in doing so he validated certain laws that had been invalid because he had not assented to them previously. Justice Munir also ruled that constitutional legislation could not be validated by the Governor General but had to be approved by the Legislature. The lack of a Constituent Assembly did not transfer the Legislature\’s powers over to the Governor-General.The Court was referred to for an opinion and on May 16, 1955 expressed: 1. The Governor General in certain circumstances had the power to dissolve the Constituent Assembly. 2. The Governor-General has during the interim period the power \’under the common law of civil or state necessity\’ of retrospectively validating the laws listed in the Schedule to the Emergency Powers ordinance. 3. The new Assembly (formed under the Constituent Convention Order 1955) would be valid and able to excerices all powers under the Indian Independence Act 1947. [4]In his verdict, Munir declared it was necessary to go beyond the constitution to what he claimed was the Common Law, to general legal maxims, and to English historical precedent. He relied on Bracton\’s maxim \’that which is otherwise not lawful is made lawful by necessity\’, and the Roman law maxim urged by Jennings, \’the well-being of the people is the supreme law.\’

    Shahid

    May 4, 2009 at 3:49 pm

  4. I want to really get the title and citation of the case from where the doctrine of state nececessity originated.

    Peace

    May 6, 2011 at 11:16 pm

    • The case that was filed on behalf of Maulvi Tamizuddin Khan on 7 November 1954, by Advocate Manzar-e-Alam. D.N. Pritt was requested to litigate the case for Tamizuddin. The Judgment and Order of the Chief Court of Sind at Karachi on , February 9, 1955 is filed as PLD 1955 Sind 96.
      Governor General Ghulam Mohammad’s appeal to the federal court was heard in March 1955 (Federation of Pakistan v Maulvi Tamizuddin Khan). I am searching for the citation of that case number. Regards.

      Shahid Batalvi

      May 9, 2011 at 2:18 pm


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