Reviving the ghost of necessity

Justice Munir would often boast of his outstanding ability to write two judgments in a criminal case – one for conviction and one for acquittal, both equally convincing.

Indubitably, he was the greatest legal mind the Subcontinent has ever produced. However, in the long run, history had unexpected plans for him. So, history made him a perpetual villain and viciously smashed him into the dark dungeons of oblivion. Historians unanimously agree that Justice Munir is not a standard to be followed, that he lacked character, was a submissive opportunist and a complying tool of the then establishment.

The inexcusable sin committed by Justice Munir, which made him a dark lord, was his reliance upon the abominable 'Doctrine of necessity' in the Maulvi Tamizuddin Case. J Munir vide whilst relying on said doctrine deceitfully transformed naked power into legal authority by validating the decision of the then governor general to dismiss an elected government. In his verdict, he quoted Bracken: "that which is otherwise not lawful is made lawful by necessity." Courtesy Justice Munir’s inopportune jurisprudential gymnastics, the Maulvi Tamizuddin judgment attained the status of judicial precedent and our courts readily followed it to legitimize subsequent military coups.

Recently, the Election Commission of Pakistan (ECP), by relying on unfounded grounds alien to the provisions of the constitution and applicable electoral laws, has postponed the elections of the Punjab Assembly. As per the constitution, the life of an interim government is ninety days. Nevertheless, such an escapade of the ECP (instigated or endorsed by all institutions except the judiciary) has extended the tenure of interim government by six months. The ECP’s decision patently contravenes Article 105 of the constitution, Section 58 of the Election Act and directions of the Supreme Court.

The aforesaid violations can’t be taken insouciantly. Fundamentally, these transgressions are signalling a revival of the 'doctrine of necessity'. The ECP is attempting to make lawful by necessity that which is otherwise without lawful authority. The reasons stipulated in this extraordinary decision of the ECP may be necessary (in view of few stakeholders) but they, by no stretch of imagination, are legal.

The preamble to the constitution lays that sovereignty belongs to Allah Almighty alone and the same is to be exercised as a sacred trust by the people of Pakistan. The right to be governed by representatives chosen by the free will of the people is our constitutional reality, wherein all authority is to be exercised by the people. Since the will of the people is paramount and becomes the basis of the authority, therefore no political order can be established without prior sanctioning by the people. As Benjamin Disraeli appositely observed: "I repeat that all power is a trust-that we are accountable for its exercise – that, from the people and for the people, all springs, and all must exist."

The basic structure of our constitution envisages a representative democracy in which people act through their elected representatives. It is actualized through a participatory political process – periodic elections. Therefore, periodic elections are to democracy what breathing is to life, they give the public a voice into the laws they were governed by. The significance of elections was best vivified by Winston Churchill in these words: “At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper – no amount of …voluminous discussion can possibly diminish the overwhelming importance of the point.”

The ECP, by extending the tenure of an unelected caretaker government, has impaired the basic structure of the constitution. Under the constitution, the only mode available to acquire authority beyond three months is through elections. Due to its unelected and unaccountable nature, the caretaker government has a narrow mandate.

The ECP in our democratic scheme is a high functionary, and the discretion vested in it is to be used objectively and within limits prescribed by the constitution. If the ECP acts in a bizarre manner contravening the clear commands of the constitution, it forebodes ill for our democratic destiny. The ECP’s decision is an offensive deviance from our basic constitutional course, and is tantamount to pitilessly sacrificing the fundamentals of our constitution at the altars of the goddess of necessity.

In 1783, Willian Pitt contended, “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants”. We are in position to be hijacked from the course of elections by the 'doctrine of necessity' bolstered by unknown muscles, institutional collusion or subtle perversion of discretion. The Supreme Court, being the ultimate guardian of the constitution, has to ensure elections are held within a constitutional timeframe. For Chief Justice Bandial (in particular) and the rest of the Supreme Court judges (in general), this is a defining moment of their career. The current crisis is not about any political party; it is simply about not letting an infamous doctrine outweigh the clear command of the constitution.

The issue of the composition of the bench is irrelevant here. In fact, a full court, under the current circumstances, would have been the most ideal situation. Even if a full court is constituted, the judges who have taken oath under the same constitution will not go beyond the mandate of the constitution; at least that is what their oath requires them to do so.

I don’t expect any judge’s views being influenced by irrelevant notions of necessity which the constitution doesn’t even envision. If this happens, let history be the judge of such risks. It needs to be remembered that history may overlook a judge’s legal perspicacity, flowery language, holy sermons and decorative verdicts but it never condones judicial verdicts sanctioning unconstitutional voyages.

Despite being a man of unrivaled and astute legal acumen, Justice Munir was judged harshly by history. When it comes to judging judges, history is unsympathetically and brutally honest and always leans in favour of judges who discard necessity and valiantly safeguard the constitution.

The writer is a Lahore-based advocate of the high court.