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Since 9/11, this notorious doctrine has been adopted, to one degree or another, by the United States, Britain and many other Western countries. In essence, what the Doctrine of Necessity means is that, due to the exigencies of special circumstances, some aspects of the rule of law and democracy have to be sacrificed in order to save democracy and the rule of law in the long term. Just as no part of the human body can grow again after being amputated, neither can the rule of law and democracy be saved by sacrificing parts of these institutions.
The promise that the rule of law and democracy are only temporarily being diluted or put in abeyance is a promise that cannot be kept. Like a cancer, alien elements that enter bodies and practices spread to other parts, and gradually the entire system can succumb to the disease unless radical attempts at reform are made to abandon this notorious doctrine altogether.
The symbolic burial that the Pakistani lawyers carried out is, in fact, part of a much larger campaign to undo the emasculation of the rule of law and democracy by military regimes in Pakistan for several decades. The last few months have witnessed the most significant popular upsurge against militarism and a call for a return to the rule of law that Pakistan has ever witnessed since the inception of this nation after being separated from India in 1947. This revolt has taken the form of a fight for the independence of the judiciary and resistance against moves by Gen. Pervez Musharraf's regime to oust the chief justice of Pakistan, Iftikhar Chaudhry, by framing charges against him.
Popular support has been surging throughout the country for several months. The continuity of the struggle and the mass participation demonstrate the spontaneous reaction of the people against the repression that has been carried out under the guise of the Doctrine of Necessity.
This doctrine is not, in fact, a legal doctrine at all. It is a political doctrine that tries to create legal respectability and legitimacy for acts of stark repression. The acts that are carried out under the guise of legality are not only what would otherwise be illegal arrests and detentions but also torture, abductions, forced disappearances, a denial of press freedom and the right of assembly and many other acts, in earlier times considered possible only in police states. The imposition of notions and practices similar to those described by Alexandr Solzhenitsyn in The Gulag Archipelago are being introduced in many countries as acts of necessity now.
The following comments by Baseer Naveed of the Asian Human Rights Commission on how this doctrine has been used in Pakistan provide a useful lesson to every other country:
"The Doctrine of Necessity was always used by the Pakistan judiciary whenever an elected government was thrown out of power by extraconstitutional forces. This doctrine was first used in 1954, just seven years after the creation of Pakistan. The governor-general, Ghulam Muhammad, dissolved the first Constitutional Assembly and the government of Prime Minister Khawaja Nazimuddin. This motion was challenged in the Sindh High Court, which held that the dissolution had been illegal and unconstitutional. However, on appeal, the Chief Court of Pakistan, which was later renamed the Supreme Court, decided that the governor-general had acted correctly. Chief Justice Munir thus created the so-called Doctrine of Necessity."
After this ruling, whenever elected governments were overthrown by martial law, the courts allowed the ultraconstitutional actions of the army and judged them to be legal according to the Doctrine of Necessity. The inventors of these theories are the late A. K. Brohi and Shareef Uddin Peerzada, who were lawyers working on behalf of the government at the time. Peerzada is still the lawyer of Musharraf, who also made use of this doctrine when the state of martial law he declared was challenged in 2000.
Since the creation of Pakistan, the army and bureaucracy have had a good friend in the judiciary. The latter repeatedly has allowed the non-elected forces of the state to do as they please in the name of "saving the country," for the Doctrine of Necessity is the absurd idea that it is legally justifiable to abandon the Constitution in order to preserve the country. According to this doctrine, the army can do no wrong, no matter how illegal or unconstitutional its actions may be. The doctrine has been used several times to throw out an elected government and discard a Constitution.
For example, in 1958, Gen. Ayub Khan imposed martial law, dissolving Parliament and abrogating the Constitution of 1956. His coup was challenged in the Supreme Court. After a briefing at the army's general headquarters, the judges decided that the military was acting in accordance with the Doctrine of Necessity. The general ruled for nearly 11 years during which time all civil liberties were suspended.
In 1977, Gen. Zia ul-Haq dissolved Parliament and abrogated the Constitution of 1973. The chief justice went to the army headquarters before announcing the court's judgment in favor of Gen. Zia and, indeed, even in front of him. This decision, of course, was based on the Doctrine of Necessity, and the military enjoyed another 11 years of power undisturbed by the courts.
When deciding on the constitutionality of the military coup of Oct. 12, 1999, that brought Gen. Musharraf to power, the Supreme Court referred once more to the Doctrine of Necessity. At the time, it even gave Musharraf unlimited power to amend the Constitution as he pleased. Some in Pakistan's legal circles claim that this decision was literally written outside the court and handed to the judges to pronounce without them even having had time to read it properly. In any case, the regime had manipulated the composition of the Supreme Court beforehand.
If the rule of law and democracy are to have any meaning, the ceremonial burying of the Doctrine of Necessity by a group of lawyers in Pakistan needs to be supported by the Pakistani people and emulated throughout the world. Otherwise, the rule of law and democracy themselves will be buried.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
