Expected Verdict and the Doctrine of Necessity

The three member special bench has concluded its proceedings and reserved its judgment. The entire country is now engaged in a hot legal debate. Every day our television channels try to predict what the Supreme Court is about to do. Everyone is a legal expert and intricate questions are answered with confidence; without any consensus whatsoever. Who is going to pass the final order? Will the Prime Minister be disqualified? Will the court instead refer the matter of disqualification to a proper forum for trial?

As for who or which bench, I have given my opinion in a previous article; the three member special bench is empowered to, and will, pass the final order.

The question pertaining to Prime Minister’s disqualification, however, is a tricky one. Reference can be made to the April 20th judgment of the five member bench, our constitution and our judicial history, to arrive at an educated guess.

The 547 page judgment in Constitution Petition no. 29 of 2016 was a 3-2 split decision. A deeper analysis would reveal that even though it was 3-2 with regard to the operating part, the judgment may be read as a three way split in wider terms. In that, the judgment is a 2-2-1 split.

Justice Khosa and Justice Gulzar agree that the Supreme Court has the power under Article 184(3) to consider the question of disqualification of a member of Parliament – and the Prime Minister – and that said power can be exercised without being bound by any procedural requirements of a proper trial. The hon’ble Justices have held that the matter in hand does not involve any intricate questions of fact, as was contended by the Respondents’ counsel and the Attorney General.

“… and now this court cannot turn around and shy away from deciding the matter simply because it statedly involves some disputed or intricate questions of fact which, as shall be discussed shortly, it does not.” Justice Asif Saeed Khosa (p.63,64)

Justice Azmat Saeed Sheikh and Justice Ejaz Ul Ehsan seem to agree to the extent of Prime Minister’s disqualification being justiciable by the Supreme Court under Article 184(3). They however held that the matter does involve intricate questions of fact and these need to be addressed, probed and answered before reaching a verdict. Justice Azmat and Justice Ehsan did discard the Respondents’ contention that such exercise cannot be undertaken by the Supreme Court under Article 184(3) and went on to hold that an exercise to probe into intricate questions of fact can, and has previously been, undertaken by the Supreme Court through an investigative body appointed by the court.

“No doubt, ordinarily this Court in exercise of its jurisdiction under Article 184(3) of the Constitution tends to avoid deciding the disputed questions of facts. However, this is not an absolute rule. In exceptional circumstances, this Court on more than one occasion has undertaken such an exercise.” Justice Azmat Saeed Sheikh (p.314)

All four hon’ble Judges seem in sync with regard to assumption and exercise of jurisdiction under Article 184(3) of the Constitution in matter of the Prime Minister’s disqualification.

On the other hand Justice Ejaz Afzal, in his judgment, clearly disagrees with the view that such an exercise can be undertaken by the Supreme Court in its constitutional jurisdiction. He holds that there are proper forums and laws available to address the question of a Parliamentarian’s disqualification and that the Supreme Court cannot, under 184(3) usurp powers of those forums.

“But where neither the Investigation Agency investigated the case, nor any of the witnesses has been examined and cross-examined in an Accountability Court nor any of the documents incriminating the person accused has been produced and proved in accordance with the requirements of the Qanun-e-Shahadar Order, 1984, nor any oral or documentary pieces of evidence incriminating the person accused has been sifted, no verdict disqualifying a holder of public office could be given by this Court in a proceeding under Article 184(3) of the Constitution…” Justice Ejaz Afzal (p.230)

“We would not leap over such phases in gross violation of Article 25 of the Constitution which is the heart and soul of the rule of law.” Justice Ejaz Afzal (p.231)

“We for an individual case would not dispense with due process and thereby undo, obliterate and annihilate our jurisprudence which we built up in centuries in our sweat, in our toil, in our blood.” Justice Ejaz Afzal (p.232)

It is thus clear that even-though Justice Afzal did eventually agree on the formation of a JIT for investigation into the intricate questions of fact, he does clearly hold that the question of disqualification of the Prime Minister, or any Parliamentarian, cannot be adjudicated upon by the Supreme Court acting in its constitutional jurisdiction under Article 184(3).

The difference in approach of the honourable Justices can be attributed to the notorious doctrine of necessity; an evolved and reformed version thereof. While Justice Afzal adopts a stringent ‘by the book’ approach, the other four find it reasonable and necessary to take a more lenient path in view of exceptional, unfortunate or special circumstances.

Justice Khosa and Justice Gulzar have applied the evolved form of the doctrine to justify assumption and exercise of jurisdiction without resorting to an investigative exercise.

“These petitions had been entertained by this Court in the backdrop of an unfortunate refusal/failure on the part of all the relevant institutions in the country…” Justice Asif Saeed Khosa (p.63)

“It is obvious that when it comes to the said jurisdiction of this Court to do complete justice a strict application of the black letter law may not stand between this Court and the noble cause of justice if the circumstances so warrant.” Justice Asif Saeed Khosa (p.138)

Justice Azmat Saeed and Justice Ejaz Ul Ehsan, on the other hand, use the doctrine to undertake the exercise under Article 184(3) instead of referring it to NAB or ECP for trial.

“No doubt, ordinarily this Court in exercise of its jurisdiction under Article 184(3) of the Constitution tends to avoid deciding the disputed questions of facts. However, this is not an absolute rule. In exceptional circumstances, this Court on more than one occasion has undertaken such an exercise.” Justice Azmat Saeed Sheikh (p.314)

The hon’ble Judges have already given their views on whether the question of Prime Minister’s disqualification can be adjudicated upon by them under Article 184(3). It may thus be reasonable to predict a 2:1 split decision in favor of the said disqualification; Justice Ejaz Afzal dissenting.

I understand my reference to the doctrine of necessity may have raised a few eyebrows and turned a few heads. Admittedly the doctrine has played havoc with Pakistan’s political and judicial evolution. First adopted in Maulvi Tamizuddin’s Case by Justice Munir, this doctrine has repeatedly been used to justify abrogation and subversion of our Constitution. It has rightly been abhorred and despised by all true democrats and proponents of constitutional supremacy. But this is not the same vile version of the doctrine.

First, contrary to Justice (r) Iftikhar’s assertion, the doctrine of necessity cannot be buried or forgotten; for welfare and well-being of the people will and should always be the foremost consideration.

Second, I have called it a reformed and evolved version because it now exists in its true form; where justice takes precedence over law and not the other way around. While it has mostly been used to bypass substantial law, it now only exists to go around procedural technicalities only where necessary for the ends of justice.

Third, while it has always been used to send the entire democratic system packing, it is not the intended goal anymore. Our democratic structure does not stand on the shoulders of any individual. The Prime Minister’s disqualification, if it comes to that, has no bearing on the existence of our Parliament or our democracy.

Justice Ejaz Afzal is right; our  judiciary and jurisprudence have evolved. Latching on to them, so has the doctrine of necessity.

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