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In Pakistan: “Necessity” is the Mother of Constitutional Continuity. Is it also the Mother of Judicial Tenure?

May 2, 2007

About a decade ago, following the installation of the last caretaker regime of the “democratic era” in Pakistan, I suggested to a prominent Pakistani politician that the doctrine of necessity was one of Pakistan’s core jurisprudential principles.  To this he replied, “yes, too much necessity and not enough doctrine.”  Indeed, the Supreme Court has thrice justified transitions to military rule ” in 1958, 1977 and 1999 – through a legal fiction known as the doctrine of necessity, more than any other fledgling democracy in Asia.  Essentially, the doctrine of necessity is invoked by courts when faced with the consequences of extra-constitutional transitions to avoid a break in the constitutional umbilical cord.  The reasoning goes that the Court must stay open for business in order to avoid plunging the country into deeper chaos.  As Justice Dorab Patel wrote many years ago with palpable frustration:  “how do you expect five men alone, unsupported by anyone, to declare martial law unconstitutional?”

The removal of Iftikhar Mohammad Chaudhry, the chief justice suspended by President Pervez Musharraff on March 9, sparked protests across Pakistan and posed perhaps the most serious challenge to the President during his tenure.  Mr. Chaudhry’s removal also stirred an old debate about the relationship of the military-executive with the judiciary. 

Law and necessity can be uneasy bedfellows.  Some argue that the rule of law cannot exist without an independent judiciary.  But “independence” is a relative term.  (Interestingly, Pakistan became independent in 1947 but didn’t have its first constitution until nine years later.)  With absolutely no intention of justifying the way in which Mr. Chaudhry was sacked from the Supreme Court, let me suggest that rule of law exists in Pakistan even if it is not as robust as many of us would like.  Both the Supreme Court and lower courts function largely at a level of procedural regularity.  Large numbers of disputes are resolved every day in Pakistan ” disputes that mean a lot to people who are interested in getting on with their daily lives — with a reasonable level of impartiality.

The problem with the all-or-nothing approach to judicial independence is that many purists overlook the importance of historical processes and contested political negotiation to stake out the boundaries of judicial independence (see Judicial Independence Study written by The Asia Foundation for the Asian Development Bank). The current crisis is actually an opportunity for Pakistanis to re-examine those boundaries with some degree of urgency.  Given the support by the public and legal community for the ousted Chief Justice, this could also be an historical moment in Pakistan’s political development and the role of the judiciary in that development.

Erik Jensen is The Asia Foundation’s Senior Legal Advisor.

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