By P.K.Balachandran
Pakistan’s Prime Minister Imran Khan was ousted from power early on Sunday when his Pakistan-Tehreek-i-Insaf (PTI) government lost the No Confidence Motion (NCM) moved by the opposition led by the Pakistan Muslim League-Nawaz (PML-N) and the Pakistan Peoples’ Party (PPP). 174 members of the 342-strong National Assembly voted in favor of the NCM. A narrow defeat showing that Imran, though down, is not a washout.
However, Imran Khan became the first Pakistani Prime Minister to have been removed from office through an NCM. Earlier, Shaukat Aziz in 2006 and Benazir Bhutto in 1989, had faced NCMS, but had survived.
Imran had used every trick in the book to dodge the NCM. He brazenly whipped up issues for which there were no solid grounds and used them to get the Deputy Speaker of the National Assembly to reject the NCM. He charged that the NCM was anti-national as it was a product of a US-inspired conspiracy to overthrow him for his “independent” foreign policy. He charged that US State Department official Donald Lu had threatened to punish Pakistan if the NCM was defeated. Before the NCM was taken up Imran got the President to dissolve the Assembly and order fresh elections.
The opposition took the matter to the Supreme Court which nullified both the dismissal of the NCM and the dissolution of the Assembly. This sealed the fate of the PTI regime though it had already lost majority support in the House unofficially.
While the opposition should be credited with political unity and the grit to maintain it against the determined resistance of Imran, it is the Supreme Court’s decision not to apply the ‘Doctrine of Necessity’ to keep the Imran regime going which played a decisive role. In too many cases in the past the highest court had applied the ‘Doctrine of Necessity’ on the plea that a change had taken place which could not be reversed. In the present case, the court could well have said that the NCM need not be resurrected when the Assembly had been dissolved and fresh elections were to be held in three months. After all the people are sovereign, let them decide, the court could have said.
But the court did not want to follow the beaten track, excuse the actions of the wielders of power on the basis of the Doctrine of Necessity, let the Assembly be dissolved and fresh elections be held. It used Article 58 (1) of the constitution which clearly says that a Prime Minister cannot advise the President to dissolve the National Assembly if a vote of no-confidence against him/her has been brought in the Assembly and had not been voted upon.
The court believed that the democratic process cannot be subverted first and judicial sanction for it secured subsequently. By taking this line the five-bench court headed by Chief Justice Umar Ata Bandial had made a clean break from the past.
Pro-Power Proclivities
The Pakistan Supreme Court has had a mixed record in its 75-year history, sustaining questionable actions and also upholding democracy. It has sanctioned the abrogation or suspension of the Constitution in recognition of the dominant political power of the day. In 1954 Governor General Ghulam Mohammad dismissed the first Constituent Assembly which was drafting Pakistan’s first constitution. Moulvi Tamizuddin challenged this in the Sindh High Court. While the lower court upheld the challenge, the Federal Court, headed by Justice Mohammad Munir, reversed the decision of the lower court on technical grounds.
In 1958, the installation of the Martial Law was challenged. The Federal Court, again headed by Justice Munir, drew inspiration from Hans Kelsen’s ‘Doctrine of Necessity’ and held that “a successful revolution or coup d’etat is an internationally recognized method of changing a constitution.” Thus, the Laws (Continuation in Force) Order of 1958 promulgated by military dictator Gen. Mohammad Ayub Khan became Pakistan’s legal regime. Justice Munir’s decision on the basis of the ‘Doctrine of Necessity’ enabled the legitimization of subsequent military coups.
Doctrine of Necessity
According to Dr. Jayampathy Wickramaratne, the Doctrine of Necessity was first expounded in the 13th century by English jurist Bracton. Bracton stated “that which is otherwise not lawful is made lawful by necessity”. Glanville Williams described the “defense of necessity” as involving “a choice of the lesser evil.” The doctrine is recognized in criminal law, Wickramaratne points out. But he wonders if it can be applied in constitutional law as its use or misuse in Pakistan in constitutional matters show.
In Pakistan, judges tended to get intimidated by Martial Law regimes and ended up doing the latter’s bidding. Wickramaratne quoted frustrated Justice Dorab Patel who asked: “How do you expect five men alone, unsupported by anyone, to declare martial law unconstitutional?.” Giving the green signal to Martial Law regimes became a recipe for survival in Pakistan.
However, the judiciary redeemed itself in 1972. Justice Munir’s judgement came under criticism in the Supreme Court in 1972 in the Asma Jilani versus Govt. of Punjab case. The Supreme Court bench headed by Justice Hamoodur Rehman declared the Martial Law imposed by military dictator Gen. Yahya Khan as unconstitutional. Justice Hamoodur Rehman’s judgement gave hope that Pakistani courts would not allow military takeovers any more. But the hope was dashed in the Begum Nusrat Bhutto vs Chief of Army Staff and the Federation of Pakistan case in 1977. The court declared the military coup staged by Gen. Ziaul Haq legitimate on the basis of the ‘Doctrine of Necessity’ and “peoples’ welfare”.
In the Haji Saifullah vs Federation of Pakistan case of 1989, the Supreme Court declared that the dissolution of the Assembly and removal of Prime Minister Mohammad Khan Junejo in 1987 was illegal. But since a new government had already been elected, the court did not reinstate Junejo and the Assembly.
The Supreme Court upheld the dissolution of Assemblies and the ouster of Prime Minister Benazir Bhutto under Article 58(2b) of the Constitution in 1990 and 1996. Article 58 (2b) under the Eighth Amendment had given the President power to dissolve the National Assembly. But the Supreme Court had taken a different stand on this issue in 1993 when it reinstated Prime Minister Nawaz Sharif, striking down the dissolution of the Assembly.
Gen.Pervez Musharraf’s 1999 coup was indemnified by the Supreme Court under the ‘Doctrine of Necessity’. In March 2007, Musharraf declared that he would contest in the next Presidential election. But a nine-member panel of Supreme Court judges deliberated on six petitions for his disqualification as a candidate. In September 2007, in a 6–3 vote, Judge Rana Bhagwandas’s court removed the obstacles to Musharraf’s election bid. However, on 3 November 2007, Musharraf suspended the Constitution, imposed a State of Emergency, and fired the Chief Justice of the Supreme Court. These moves sparked mass protests by lawyers. Also by August 2007, public opinion polls had showed that 64% of Pakistanis did not want another term for Musharraf.
General elections were held on 18 February 2008, which the Pakistan Peoples Party (PPP) won. On 23 March 2008, President Musharraf declared that an “era of democracy” had been ushered in Pakistan and claimed that he had put the country “on the track of development and progress”.
But on August 7, 2008, the Pakistan Peoples Party and the Pakistan Muslim League (N) entered into a pact to force Musharraf to step down and also impeach him for misdemeanors from the time he seized power in 1999. The charge-sheet mentioned his coup of 1999 and his attempt in November 2007 to get re-elected by declaring an emergency. The charge-sheet accused him of committing Pakistan to the unpopular US-led “War on Terror.”
Musharraf saw the writing on the wall and on August 18, 2008, he announced his resignation and on November 2008 left for London on exile.
