MILITARY INTERVENTION AND ROLE OF COURTS IN PAKISTAN

MILITARY INTERVENTION AND ROLE OF COURTS IN PAKISTAN <!--[if gte mso 10]> MILITARY INTERVENTION AND ROLE OF COURTS IN PAKISTAN By Ms. Alia Ijaz, Advocate High Court First Law Company, Lahore Introduction: The military has remained an influential actor in the political history of the Pakistan. During 57 years of its creation, there have been four coups and martial laws. Even during the small intervals of democracy, the military has directly or indirectly affected the state policies. The military in any country is considered the custodian of the national boundaries, responsible for protecting the nation against any external or internal aggression. In Pakistan however, the military has also assumed the political role and. for this reason has been severely criticised by Independent bodies in national and international circles. The military has always dismissed this criticism by claiming that its intervention is only for the betterment of the Pakistan and blamed politicians for the decay and disintegration of civil institutions. The military is not just an instrument of force and violence, but an institution and according to military analyst and writer, Hasan Askari, a "way of life" and according to Jacques Van Doorn "the embodiment of a nation's conscience and a nation's will". The military government is considered, the most common form of the government in the third world countries. There have been coups in more than two thirds of the various countries of Asia, Africa, Middle East and Latin America since 1945. But the difference between some of these countries like Bangladesh, Mexico, etc and Pakistan is that in these countries "after perennial gale of intervention", the military returned to its barracks but not in the case of Pakistan. The judiciary the third organ in Pakistan is not known for its impartiality and independence. The reasons being whenever the question of usurpation of the state power had arisen either by the executive or the military dictator the superior judiciary had endorsed the usurpation. From Special Refrenece case(1955) to Zafar Ali Shah case (1999), the judiciary has shirked its duties under the garb of Kelsen's Legal Positivism and Doctrine of State Necessity. It has been vigorously contested by the legal theorist and the judges that courts lack the means to enforce judgements against usurper. The responsibility of judiciary is not very different from other organs. So when the other two organs repeatedly evade their duties then why judiciary is blamed for especially when it also lacks necessary powers against the usurper who on the other hand posses all powers to wipe out the judicial branch. Judiciary the third organ of the State: The "Judges according to Pannick do not have an easy job. They repeatedly do what the rest of us seek to avoid; make decisions". The judges derive this decision making power from the constitution. So if the constitution has been abrogated or suspended then the judicial power also ceases to exist. This was the case in Lesotho in 1970, when the prime minister had suspended the constitution. The Chief Justice of Supreme Court also suspended the proceeding of the courts and maintained that courts could work only under constitution. Only after the establishment of new courts under new legal order, the judges resumed their functions. However in later case the court held that "A judge's strength and value lies in continuing to hold office and to carry out his or her duties with integrity, even-handedness, boldness and courage". In Pakistan the courts though continue to sit after the abrogation of the constitution by the usurper nevertheless failed to perform their duties judiciously. Doctrine of Necessity: The doctrine of necessity that has been extensively applied by the Pakistani courts to allow the excessiveness and absolutism of the extra-constitutional regimes is a common law doctrine "which provides justification or otherwise illegal conduct during a public emergency". It is based on maxims "that which otherwise is not lawful, necessity makes lawful", "Safety of people is the supreme law" and "Safety of the State is supreme law". The doctrine of necessity which has many critics has found its place in the writings of Hugo Grotius, Chitty and Bracton etc, not once they alluded to use this doctrine to flout the constitution or to undermine the rule of law. Rather in application it has been limited to what is `reasonably required' and that does not include the abrogation of the constitution. The Courts in Pakistan allowed the suspension of the constitution under the doctrine in Nusrat Ali Bhutto Case and Zafar Ali Shah Case. While making the doctrine of necessity as the basis for the sustenance of the extra-constitutional actions the courts in both cases failed to ' consider another important principle of the doctrine of necessity; that "No body may take advantage of a necessity of his own making". In above mentioned cases the plea of necessity was used by the military dictator as an excuse for `legalising' the military intervention, a `self-inflicted' emergency therefore the claim of the state necessity was mere facade. According to Glanville Williams the doctrine of necessity can be used to qualify law, in terms that in extreme emergencies the courts can resort to this doctrine in similar fashion as if they are applying the letter of law but only where there is imminent threat to constitutional structure. During the civil war period, the U.S supreme court by ruling that the military tribunals cannot try the cases of civilians outside, the disputed territory held, " the constitution of the U.S is a law for the rulers and the people equally in war and peace,....No doctrine, involving more pernicious consequences, was ever invented by the wit of man than any of its provisions can be suspended during any of the great exigencies of government". Kelsen' Legal Positivism: The legal writings of Hans Kelsen had been applied in manyCommonwealth countries to give legitimacy to the coup d'etats . However it was used for the first time in Pakistan in Dosso Case (1958). According to one writer, "from this acorn (Dosso case) grew an oak tree. Its branches extended to most of the commonwealth where coups had occurred". According to Kelsen a successful revolution or coup when occurs, replaces the old constitution. It derives its legitimacy from the new order and not from the old constitution that disappears with the revolution. The success or validity of the new order will be determined on the touchstone of efficacy of the revolution. If the new legal order is efficacious then the legitimacy conferred on the new legal order would be dejure and not mere defacto. This legal positivism of Kelsen has been severely criticised. According to J.M Eeklaar, the principle laid down by Kelsen that `those in defacto impregnable control should be accorded legal recognition' couldn't not be applied in isolation to other principles. The difference between legal rules and legal principles as illustrated by Dworkin is that .`rules' apply in an `all or nothing fashion', whereas `principles' have to be `weighed' against other principles. So while applying the principle lay down by Kelsen, courts ought to consider, for example the principle that government should be by the consent of governed and principle of upholding the constitution'. Kelsen's legal theory applies only to revolutions, because only in a revolution the whole legal order is changed whereas in coup d'etat mainly those parts of the constitution that deal with the powers of the executive and the legislature. It has been argued that in all cases where this theory has been applied to validate the coups the decisions were made within few days of their occurrence. Therefore these judgements did not satisfy the sole test of 'efficacy'. In Pakistan this theory has never been applied since Dosso Case, after being denounced in Asma Jilani case. Though the judgement in Dosso case and the theory itself was severely criticised by many for the inability of the courts to confront usurper is a stark reality. J. W Harris said, the courts in Pakistan and other Commonwealth countries had taken right decisions, because they knew that no matter what they decide the `revolutions would be successful'. Judicial Choices in Coup d'Etat The choices available to the courts after coup d'etat are limited. One such choice that is the validating the usurper's actions opted by Pakistani courts have been discussed above. Here the remaining choices along with the reasons for this `judicial idiosyncrasy' of Pakistani courts will be discussed. Resignation: A coup according to Tayeb Hussain is a `political event'. With the coup, two organs of the state the executive and the legislature disappear immediately leaving behind the judiciary. In these circumstances the court finds itself at cross roads. In Ndhlovu case the court held that "when judge continues to sit after they had found as a fact that as a result of successful revolution the old constitutions had been effectively overthrown and replaced by new constitution, they, by continuing to sit, accepted the new constitutions and when they held that that new constitution was dejure they gave those decisions sitting under the new constitutions". This rule if accepted leaves only one solution for dissenting judges i-e to resign. By resigning, the judges can at least convey their condemnation towards unconstitutional regime established after successful coup. However this practise was strongly criticized in Zafar Ali Shah case. The court described the `resignation' of judges as the `most detestable thing' and that the "independence of judiciary does not mean that judges should quit their jobs and become instrumental in the closure of the courts". Moreover the usurper will then get complete discretion to fill the courts with his loyal judges. The Doctrine of Political Question: Being the creature of the constitution the foremost duty to protect the constitution lies on the courts. Nevertheless it is also true that standing against the usurper is like taking bull by horn. In such situations, according to some writers the courts should refuse to entertain the matter on the basis of `non-justifiability of political question'. This is the only way the courts can secure their impartiality. The political question doctrine implies that in some cases courts forgo their function of judicial review on grounds inter alia that it lacks "judicially discoverable and manageable standards of resolving' the matter in hand. This approach again is also not free from criticism. If the court refuses to deal with question in hand on the basis of political question doctrine it will amount to abdication of judicial duties and therefore cannot be justified. According to Lord Hailsham, that `the courts cannot choose the work they do; they have to come to a decision one way or the other on all litigation which is brought before them. The U.S courts in the most `politically laden matters' had refused to apply this doctrine on all six grounds laid down in Baker v Carr(1962), including the above-mentioned `lack of the judicially discoverable means'. In Pakistan. this doctrine has never been used nor in any other country where the coups have occurred. One reason might be that the courts do not want to lose the opportunity to safeguard the remaining provisions of the constitution. Stand Against the Usurper: "The King ought not to be under any man, but he is under God and the Law"; this was the reply of Justice Coke to King James I. And this was the reply expected from the judiciary in Pakistan on each occasion when the question of the validity of the coup was raised. As to the question that why the courts in Pakistan had always preferred the pragmatic approach over the constitutionalism, according to one view that at the time of independence the majority of judges were `Mohajirs' (migrants from the India) who "had strong ideological commitment to the new state then to constitutionalism". Though the writer has not provided any corroborative evidence his assertion does not seem wholly void. Addressing to the Bar, after 5-6 years of the judgement in Tameezuddin case, Justice Munir had said, "No judiciary elsewhere in the world has to pass through what may be described as a judicial torture...[in case of opposing judgement] there would have been chaos in the country". The reasoning that Justice Munir had given is not free from criticism. Because during the period when he had pronounced its judgement in Tameezuddin case, there was no political turmoil of this extent that could endanger the very existence of the country. Moreover the courts are duty bound to serve the purposes of the law and succumbing to the political pressure could not in any circumstances be considered the fulfilment of that purpose. According to Newberg, "the judgements [in Tameezuddin case and Special Reference case] crucially affected the conduct of politics and the structure of Pakistan". The judges in Pakistan are also accused of implicit bargain with the military governments. According to the implicit bargain theory, after the coup when the state apparatus falls in the hands of the military, the judges enter into the implicit bargain with the usurper who in exchange to the validation of his regime allows the judges to retain their judicial offices. This is not a wholly void allegation as in all above-mentioned cases the judges were not only allowed to continue their offices but also in some cases extension had been granted in their age of retirement. The third reason could be absence of the precedent where any court had taken stand against the usurper and was able to enforce its decision against the usurper. The only exception was the Lakanmi Case where the usurper regime was refused validation by the courts. Though the decision itself was criticised being in derogation of factual and legal provisions, the military was quick to alleviate the affects of this decision by enacting the Federal Military Government (Supremacy & Enforcement of Powers) Decree 1970 that nullified the decision of the court. However in recent years there is one example where the courts in Fiji declared the constitution to be the supreme law of the land and the prime minister of the interim-civil government, installed by the military acquiesced with the judgement of the court. The decision in Republic of Fiji v Prasad was called the "important landmark in the history of the common law" because for the first time a domestic court declared the government in power unlawful. It is also unprecedented because for the first time the usurper regime yielded to the courts decision by agreeing to restore the constitutional framework of the country. In Pakistan and other coup-affected countries, the lack of the effective means to enforce negative decisions against the usurper has been considered the greatest disability of the courts. Though the judiciary in Pakistan has not expressed this, many legal writers are of the opinion that it is wrong to expect from the judiciary to take stand against usurper. The judiciary lacks the enforcement measures against the usurper. When other organs i-e executive and legislature and police, trade unions and even army cannot stop usurpation; then what courts can do. Two questions therefore have arisen, first that in case of the military intervention why the judiciary is expected to stop the extra-constitutional action when other two organs who usually are responsible for the breakdown of the constitutional machinery fail to stop the coup? And secondly even if the court decides that the action of the usurper has breached the constitution how it will enforce its judgments? The courts are the creatures of the constitution. In their oath the judges make the pledge that they will protect and defend the constitution. Similarly in the tripartite forms of the governments the judiciary is the third organ of the state, hence when the other organs continuously evade their duties then the "pressure" falls on the third organ, the judiciary. 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