Doctrine of Necessity from CJ Munir to Judge Khosa: Role of Judiciary in the Service of Neocolonialism

Sep 29, 2017

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We need to compare the Doctrine of Necessity version 2.0 of SC Justice Khosa (2017) which states “To do a great right, do a little wrong” with the Doctrine of Necessity version 1.0 of SC CJ Munir (1954) which states “Necessity makes lawful that which is unlawful”. As per SC decision of March 2012 “deciding cases on the basis of likely consequences will mean reverting to the malignant ‘doctrine of necessity’ that has been buried by the people with their valiant struggle” [1]. It is clear that both version 1 and 2 are relying on the “likely consequences” emanating from a “great right” and “necessity”. Since 1954, Doctrine of Necessity Version 1.0 has been responsible for sending home 15 prime ministers, imposition of 4 martial laws, and slapping of dictatorial rule of over 35+ years. Effectively over the last 63 years, the doctrine seems to have only served the interests of neo-colonialism, and has neither served any great necessity or delivered any great right (see Costs of Justice Munir’s Doctrine of Necessity: 4 Martial Laws and 35 years of dictatorships). As per the comments of Justice Khosa and Justice Ejaz Afzal, Panama Case Judgement would be remembered for decades and centuries. Hence, the questions raised by Doctrine of Necessity version 2.0 are (i) How many PMs will this decision depose? (ii) How many martial laws will it germinate? (iii) How many years of dictatorial reign will it perpetuate???
[To understand the context of this post, please read At What Cost! Why Compute Economic Costs of Faulty Political Decisions]

Parallel of Justice Khosa’s Great Right version with CJ Munir’s Doctrine of Necessity

Need for a “Great Right” is always an immediate “Necessity”. In a developing country fighting perpetually for its survival and always going from one life threatening emergency to another, savior’s on horseback aided by creative judges will always find a “necessity” to serve a “great right”.

If necessity can turn “unlawful into lawful”, then a “little wrong” can always be committed for obtaining a “great right”!

What quantifiable measure can determine some “necessity” as “unavoidable” and what measurement can turn some “right” into a “great” right?

Who determines “necessity” and who determines “great right” is a fundamental question? Should a few un-elected judges decide what is the “necessity” and what is the “great right”?

Is deciding in favor of “wrong” and “unlawful” the prerogative of the judiciary? Is serving a “great right” and “necessity” when it is neither constitutional nor lawful their mandate?

Judges should strictly decide on the basis of law and constitution by remaining strictly within their bounds. Changing a constitution is always the right of the people. However, neocolonialism dictates that this right should never be given to the people to decide. It should always be usurped through military Dictators or their handmaiden judiciary (see reference below).

The dominant view of neocolonialism is that people are unworthy of deciding about what is right and what is wrong. What is necessity and what is not. This right has to be decided by the legacy of the colonial raj as enshrined in the unelected elites and powers of the status quo. Our history tells us about this un-holy alliance of the judiciary, military and the educated elites in disenfranchising the people.

Doctrine of necessity and the hidden status quo powers have been making this decision of deposing our elected prime-ministers. None of the elected prime ministers have been allowed to complete their term. See my post: Why no PM of Pakistan has ever completed his/her tenure?

Destiny of Neo-colonial Pakistan appears to be a series of governments where the hidden status quo forces of neocolonialism dictate the decisions either as a first umpire or the second umpire or the third umpire. Even in an apparent civilian rule, it all depends upon the third umpire lifting his finger to fold up the setup. The 3rd umpire famosly did not lift the finger in 2014 despite Imran Khan waiting for it on the container [2,3,4], but eventually did in 2017 through their old and trusted ally.

Neo-colonialism

[begin Wikipedia excerpt]

Neo-colonialism or neo-imperialism is the practice of using capitalism, globalization and cultural imperialism to influence a developing country in lieu of direct military control (imperialism) or indirect political control (hegemony). It was coined by Kwame Nkrumah in the context of African countries undergoing decolonization in the 1960s.

In Neo-Colonialism, the Last Stage of Imperialism, Kwame Nkrumah wrote:

In place of colonialism, as the main instrument of imperialism, we have today neo-colonialism . . . [which] like colonialism, is an attempt to export the social conflicts of the capitalist countries. . . .

The result of neo-colonialism is that foreign capital is used for the exploitation rather than for the development of the less developed parts of the world. Investment, under neo-colonialism, increases, rather than decreases, the gap between the rich and the poor countries of the world. The struggle against neo-colonialism is not aimed at excluding the capital of the developed world from operating in less developed countries. It is aimed at preventing the financial power of the developed countries being used in such a way as to impoverish the less developed.

[End excerpts from Wikipedia]

To Do a Great Right, Do a Little Wrong

Judge Khosa quoting Christopher Marlowe and then Shakespeare’s Merchant of Venice admits that his judgement is like Bassanio to Portia saying “To do a great right, do a little wrong”! Pp 169-170 from April 20, 2017 SC Judgement is reproduced below:

[Begin Excerpt]

The precedent to be set by this Court through the present petitions should in fact be a warning to all those rulers who try to subjugate all the organs of power, enslave the institutions of accountability and then in a false sense of security and invincibility proclaim as Christopher Marlowe’s ‘Tamburlaine’ did by boasting that

“I hold the Fates bound fast in iron chains,
And with my hand turn Fortune’s wheel about,
And sooner shall the sun fall from his sphere
Than Tamburlaine be slain or overcome.”

While dwelling on the subject of setting a dangerous precedent by a court of law I am also reminded of the old bard William Shakespeare. The power of literature for commenting upon a reality through the medium of fiction is fascinating and an amazing example of the same is the following part of Shakespeare’s play Merchant of Venice which, though written hundreds of years ago in foreign climes, appears to have been written for nothing but the present case being handled by us in a different millennium and in a different continent. While trying to avoid execution of an
oppressive judicial decree regarding payment of money by another Bassanio beseeched the Duke as follows:

“Yes, here I tender it for him in the court;
Yea, twice the sum: if that will not suffice,
I will be bound to pay it ten times o’er,
On forfeit of my hands, my head, my heart:
If this will not suffice, it must appear
That malice bears down truth. And I beseech you,
Wrest once the law to your authority:
To do a great right, do a little wrong,
And curb this cruel devil of his will.”

which imploring was immediately retorted by Portia in the following strong words:

“It must not be; there is no power in Venice
Can alter a decree established:
‘Twill be recorded for a precedent,
And many an error by the same example
Will rush into the state: it cannot be.”

and then what happened to that decree is another story. The punch lines in the above mentioned excerpt appear to be “Wrest once the law to your authority: To do a great right, do a little wrong”.

Fortunately for me, there is no wresting the law to me authority and no little wrong is to be done by me to do a great right in the matter of issuing a declaration against respondent No. 1 because the original jurisdiction of this Court under Article 184(3)……..

[End Excerpt]