In response to: "Why this decision will be remembered for 100 years. What's so special about it."
If article 184 is seen in context of Justice Khosa's activism, we are entering into 'the zone of doctrine of necessity.' This is what the majority decision saved us from. Both the opposition and the government are devoid of the capacity of understanding the fine points of any policy.
The majority decision courageously suppressed what was, in masquerade, a generous interpretation of the article 184 that would inevitably lead to enact judicially in a colourful attire the demised infamous 8th amendment or lighter version of the doctrine of necessity – Article 184 would have become a permanent sword of Damocles in the hands of judiciary hanging over any future PM.
I have little confidence that JIT report will clear the PM. I have no interest if he is sent home after due course of law, but I do have an issue with the liberal tampering of the article constitution with an ulterior motive of summary punishment and for that to define the scope of the 184 beyond the intent of the framers of the constitution. That is what Justice Khosa has ventured into in his Godfatherly dissent. The territory of interpretation of constitution based on the politics of the milieu.
The majority decision buried the ghost of soft re-enaction of 'The doctrine of necessity' which honourable minority of 2 through their dissenting notes wanted to enforce by the copious and profuse interpretation of article 184 of the constitution.
Chief Justice of Pakistan Iftikhar Choudhry (in legal scholarly academic terminology terms sadly but truly he is an outright dimwit) has yesterday come out with an outrageous brazen observation favouring the minority dissent written by Justice Khosa on the freedom to interpret article 184 of the constitution liberally. He thinks judicial activism displayed by the minority was the right course, so does Aitazaz.
Have we not done enough dismissals, killing and hanging without a ballot box? Why create constitutionally a liberal interpretation that gives carte blanche to the judiciary to uproot any future PM through article 184? What a discreditable stand they both have taken now. It was they who ironically in 2009 announced that the doctrine of necessity needs to be buried and never used in Pakistan.
The majority decisions of 5 demands that PM must properly answer 13 questions to the JIT. The SC will make sure the answers provide the trail of the money in 60 days, no hanky-panky answers. But the idea to pack the PM that opposition insists is rife with liberal reading of the article 184 is a soft draconian measure to dismiss the PM.
The generous explanation of Article of 184 of the constitution by Justice Khosa endemic with deficiently placed quotes effectively is a defacto cloaked lenient enactment of the infamous doctrine of necessity. A judicial coup that the majority refused to accept to issue the de-notification power. It would have set a terrible precedent. Justice Khosa interpretation would have made Judiciary the ultimate arbiter of who holds the PM office in any case of corruption charges without a trial. Judicial activism promoted by Justice Khosa pronounces judicial rulings assumed of being founded on political considerations rather than on prevailing law. The critics of judicial activism exactly point to this tendency and maintain that an activist court assumes the authority of elected branches of government, detrimental to the system.
The majority three judges in their majority decision have rejected enlarging the scope of article 184. Judicial restraint inspired judges voluntarily to restrict the exercise of their power. They declared that judges should not act to punish individuals but rather follow the procedure of law, in which investigation, conviction and the right of appeal are constitutional requirements.
The doctrine of necessity is a lawful term that pursues to validate an action carried out by the extra-constitutional authority to reinstate order. This doctrine is based on the writings of the jurist Henry de Bracton (1210-68) and later William Blackstone (1773-68) an English Jurist. Both jurists lay down that an act to restore order could come under the purview of the ‘Doctrine of Necessity.
The only place this doctrine has been copiously construed is in Pakistan. Justice Khosa interpretation of article 184 borders and incorporates this doctrine. No Anglo-Saxon country has ever used this doctrine, amongst the major nations of the world Pakistan is one nation that has recurrently endorsed changes in Pakistan’s party-political milieu under this doctrine.
History of cancer and dismissals:
Pakistani Chief Justice Muhammad Munir authenticated the extra-constitutional use of extra powers by Governor General, Ghulam Mohammad. In his ruling, the Chief Justice quoted Bracton's maxim, 'that which is otherwise not lawful is made lawful by necessity', thus providing the tag that would come to be devoted to the judgment and the policy that it was founding.
The details: The first time this doctrine appeared on the scene in Pakistan was in 1954. At that time, the Governor General of Pakistan Ghulam Mohammed sacked the constituent assembly on the ground that the assembly did not embody the people of Pakistan. A plea against the Governor General's order was filed in the Sind High court by the President of the Constituent Assembly Maulvi Tamizzuddin. The Sind high court ruled in favour of the petition filed by Maulvi Tamizzuddin. But in an appeal which was heard in the Chief Court of Pakistan (later designated as the Supreme Court), Justice Muhammed Munir set aside the judgement of the Sind High Court and ruled in favour of the Governor General.
The court banked on the doctrine of necessity as pronounced in Roman law and expressed by Ivor Jennings which specified that the wellbeing of the people was the highest law. This had far reaching effect on Pakistan politics and on several occasions, the Supreme Court of Pakistan justified Military Coups.
The court justified the military coup by general Zia ul Haq which overthrew the elected civilian Prime Minister Zulfikar Ali Bhutto. This had a wicked fall out and eventually led to Bhutto being hanged. The Pakistan Supreme court which had previously supported the rule of Zia under the doctrine of necessity also consented in the hanging of Bhutto.
In 1998 when General Pervez Mushraff in a coup ousted the elected government of Nawab Sharif the Pakistan Supreme Court again vindicated the coup on the grounds of the law of necessity. The law of necessity became an expedient way out to validate military coups. Justice Iftikhar was part of that ugly judgement.
What has our Supreme Court bequeathed to the world in legal scholarship of precedent: Wretchedly it is Supreme Court of Pakistan's interpretation of 'The Doctrine of Necessity' that has since been applied in a number of Commonwealth countries, and in 2010 was invoked to justify extra-legal actions in Nigeria. After Pakistan, 1954: First use of the Doctrine of necessity. Grenada, in 1985: was the Second nation who used the Doctrine of necessity citing 1954 decision of Munir. And in Nigeria, 2010: Nigerian parliament creates an Acting President by citing 1954 decision.
In a nutshell, the SC adopted judicial restraint in the present case instead of Judicial activism which Justice Khosa was spearheading and his approach was grounded on political contemplations of our time. It is reassuring that majority decision that will be quoted always has accepted the idea to limit the influence of the article 184 of the constitution.
Jo Dekhta Hoon Wohi Bolne Ka Aadi Hoon
Main Apney Sheher Ka Sab Se Bara Fasadi Hoon!