Judicial reasoning in revolutionary cases in commonwealth countries in postmodernity, 1955-2001

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Prof(Dr.) Saurabh Chaturvedi
Keywords: Doctrine of State Necessity, Extra-Constitutional Means, Constitutional Crisis, Constitutionalism, Recognition, New Legal Order


Constitutions are the highest created norms of a state which enable the organs of the state (e.g. the executive, the judiciary and the legislature) to operate within their defined jurisdictions. Another important characteristic of constitutions is that they contain provisions which regulate the changes that can be carried out in all the three organs of the state. Regular and periodic changes occur in the executive and the legislature by procedures explicitly elucidated in the Constitution.
When changes occur in the executive and legislature by means other than as contemplated by the constitution, these changes are deemed extra-constitutional means. Such changes amount to a revolution. Thus a revolution, in the most general sense, as described by Hans Kelsen11 includes:

(a) the use of physical force to induce the change as by a violent civil rebellion (as in China under Mao Tse Tung and the French Revolution) or a civil rebellion against a colonial sovereign power (as the American War of Independence) or a cataclysmic coup d’état such as happened in Pakistan, Uganda, Nigeria, Ghana, Seychelles and Grenada; or

(b) by a peaceful empowerment as in the short-lived palace coup in Moscow in August, 1991; unlawful seizure of power by a unilateral declaration of independence as in Southern Rhodesia 1968, or by a social uprising as in Iran in 1983.

Hans Kelsen’s contribution is therefore to consider a revolution as any event in which the legal order of a community established through the ordinary political process becomes replaced in a manner not provided for by the legal order, being ousted. If the usurper retains any part of the old legal order it becomes a valid authority of the new legal order having established its own Grundnorm which self-validates the new legal order.

Revolutions occur with some regularity, so history is endowed with many such accounts. However, it would appear that the nature of revolutions prior to the 19th Century was essentially political, and the judiciary was usually not invited to adjudicate on the constitutional legitimacy of the new revolutionary order until the later century.
During the 20th Century, and in keeping with the revival of natural law theories and claims to natural rights, constitutionalism meant abiding by the constitution, whatever happened in a state. Usurpation of political power then became challenged in courts. The judiciary was thus often faced with cases in rebus stantibus (i.e. during the existence of the usurping power.)
This presentation provides an analysis and synthesis of how the judiciary resolved the challenges and in doing so, makes a comparative analysis of judicial reasoning and determines what should be the guiding principles for such judicial decisions.
For the purpose of a comparative analysis, this study is limited to a shared Common Law legal system within Commonwealth countries for a period covering nearly half a century, 1955-2001. The countries in which these cases can be traced are Pakistan 1958, Uganda 1966, Southern Rhodesia 1968, Nigeria 1970, Ghana 1970, Pakistan 1968-1978, Cyprus 1964, 1975, Seychelles 1978, Grenada 1985, Lesotho 1989 and Fiji 2001. Due to the sheer volume of the judicial proceedings, only the highlights are presented. Further details can be obtained by reading the full versions of the cases.


1.1 PAKISTAN 1955

The Governor General’s Special Reference case No.1 of 19552 was a landmark in the early constitutional history of Pakistan.

In 1947 Pakistan may be said to have acquired an independent sovereign status in which Ghulam Muhammad was appointed the Governor General by the then existing British colonial Grundnorm, and the Constitutional Assembly was also formed. The first constitution of Pakistan was slowly in progress but by September 1954, it included a provision which not only precluded the Governor General from acting except on the advice of his ministers, but also required all Ministers to be selected from among Members of the National Assembly and to hold office only as a long as they retained the confidence of the National Assembly. It can, by necessary implication, be inferred that the Governor General might have felt insecure at having “the carpet pulled out from underneath him.” The Governor General responded quickly by dissolving the National Assembly in 1955 on the alleged ground that it was politically unrepresentative of the Pakistan people. He thereby usurped unfettered executive and legislative powers.
In the Reference case Ghulam Mohammad, the Governor General sought for an advisory court’s declaration on the validity of the use of extra-constitutional “emergency powers.” Munir CJ made an apparently thorough search of legal maxims, Common Law principles and English precedents on the matter and came across the Common Law Doctrine of State Necessity in which what is unlawful can be made lawful by necessity. Munir CJ observed that:
subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under stress of necessity, the necessity being referable to an intention to preserve the Constitution, the state, the society and to prevent it from dissolution, and affirms…necessity makes lawful which otherwise is not lawful3
The court thus approved the Governor’s General’s is actions and called upon him to form a new Constitutional Assembly, the Constituent Assembly. Munir CJ had thus given the stamp of approval to President Iskandar Mizra who then went on to form 'his" Constituent Assembly over which he had power of veto and which he could dissolve for political purposes. The new Constitution of 1956 enshrined these powers in law.
1.2 PAKISTAN 1958

The political history of the first four decades of Pakistan as an independent federal state provides mana jurisprudes by being a forum in which the judiciary embarked on jurisprudential reasoning that has been applied to suit varying circumstances, sometimes arriving at dramatically opposite conclusion. Let us begin with the events of 1958 and later provide for what happened two decades later. The landmark case is the State v Dosso and Khan4 (commonly referred to as the Dosso case).

In 1958, for reasons that appear to be a measure to avert the likely loss of power through the Constituent National Assembly enacting a new law, the first President of Pakistan, Mr. Iskandar Mizra, in a preemptive civilian action dissolved the National Assembly and Provincial Assemblies, dismissed the cabinets, declared the 1956 Constitution to be in abeyance, declared martial law and appointed the then Army Chief, General Ayub Khan, as the Chief Martial Law Administrator. He proceeded to issue the Laws (Continuation in Force) Order No.1 of 1958 which purported to avert the drastic consequences of the abrogated 1956 Constitution by continuing to recognize the preexisting laws as valid unless expressly modified by the martial law government.
On the sixth day after the coup, the Supreme Court in its usual session came up to an appeal in which Dosso and Khan, who had obtained judgements in their favour in the lower courts on the basis of the 1956 Constitutional provisions before its abrogation, asked the Supreme Court to hold that, despite the abrogation of the 1956 Constitution in the meantime and despite the contrary intention manifested by the Law (Continuation in Force) Order, their appeals should be decided by the Court on the basis of the 1956 Constitution. The Supreme Court, presided on by Muhammad Munir CJ, held that, applying Kelsen’s General Theory of Law and State5, the declaration by President Mizra was the law. The day after the judgement, General Ayub Khan removed President Mizra and exiled him and declared a Military Government in power.
Judicial Reasoning: The leading Opinion was delivered by the Chief Justice. Since the appellants had insisted in their application that their appeal be based on the abrogated 1956 Constituion contrary to the Laws (Continuation in Force) Order, the Court was then faced with an interlocutory issue of appraising the constitutionality of the Presidential Order in light of the events which had led to the abrogation of the 1956 Constitution. The Supreme Court, it will be recalled, had been called upon in 1955 to give an opinion in the Governor General’s Special Reference Case66 in which the Governor General had usurped power to make an Order to avert a 'catastrophe' and the Court under Muhammad Munir CJ had by a a majority opinion (three-to-two) decided in favour of the Governor General by application of the Common Law Doctrine of State Necessity.
Such an ingenuity of applying the Doctrine of State Necessity was not applied in this instance and instead the Court turned to Hans Kelsen’s Theory of revolutionary legality. The Court quoted Kelsen’s General Theory of Law and State7 to the hilt and in extensor.
1.3 UGANDA 1966

On 22 February 1966 the Prime Minister of Uganda supported by the Army stormed the State House, ejected the President and Vice President and in the evening issued a statement to the nation in which he declared that - in the interest of national stability, public security and tranquility - he had taken all the executive powers of the Government. That is, the powers of the President, Vice President and Prime Minister were now vested solely in the Prime Minister. In the name of the wishes of the people of Uganda for peace, order and prosperity, a series of statements were made amounting to temporary suspension of the 1962 Uganda Constitution as an initial step, detention of some ministers, and abolition of the offices of the Vice President and Prime Minister. For the effective administration and smooth running of the government and for the promotion of unity of judges, magistrates, civil servants, members of the security services, police, local government and the public in general were requested to continue with their normal activities. The legislature was preserved but a new cabinet as appointed; the 1962 Constitution was (eventually) abolished by the National Assembly and a new one adopted on 15 April 1966, hereinafter called the 1966 Constitution.

The status of the Constitution of Uganda was in issue in Uganda v Commissioner of Prisons ex parte Matovu8.
The applicant, Mr. Michael Matovu, a Bugandan County Chief, had been arrested, detained, released and rearrested on 16 July 1966 before he could leave the prison compound under orders made under the Emergency Powers (Detention) Regulations 1966. In his application to the High Court of Uganda for a writ of habeus corpus ad subjiciendum before Jeffreys Jones J sitting alone, Matovu challenged that his arrest and detention had been ultra vires vis-à-vis the 1962 Constitution which had remained the supreme law of Uganda. Since the application raised questions of law for determination relating to the interpretation of the 1966 Constitution of Uganda, the matter had to be referred to a Full Bench of three judges of the High Court.
The question of the validity of the 1966 Constitution was raised suo motto by the Court after the application had insisted that only the 1962 Constitution was valid and the Attorney General objected because he indicated that the 1966 Constitution either arose from a political act outside the scope of the Court or it was a product of a successful revolution. Leaving apart the main issue of the application, the Court directed itself to the question it raised on its own to be satisfied: the validity of the 1966 Constitution. The submission of the Attorney General deserves more detailed attention.
The preliminary objections by the Attorney General as to whether the Court could inquire into the validity of the 1966 Constitution were unanimously rejected by the Court so that it could inquire into the validity of the Constitution under which their new oath of allegiance had been administered and that the Court could attain jurisdiction to inquire into what the Attorney General had purported to be a political activity outside the jurisdiction of the Court. It was noted that, since it was the duty of the Court to interpret the Constitution, it can be said that the question of its validity is within the four walls of that interpretation. In the words of the Court "It is an essential part of the duty of the judges of this court to satisfy themselves that the Constitution of Uganda is established according to law and that it is legally valid”9.
It was contended in the Court that:

(i) the events that finally led to the promulgation of the 1966 Constitution amounted to a coup d’états;

(ii) coup d’états are recognized in international law as a proper and effective legal means of changing governments or constitutions in a country like Uganda which is politically and completely independent and sovereign;

(iii) the four cardinal requirements in international law to give the 1966 Constitution and Government of Uganda validity had been fulfilled, namely;

(a) that there must be an abrupt political change; a coup d’état or a revolution;

(b) that the change must not have been within the contemplation of an existing Constitution (The 1962 Historically First Constitution, in the post-independent Uganda)

(c) the change must destroy the entire legal order except what it intends to preserve, and

(d) the new Constitution and Government must be effective (emphasis added)10

Reference was made to Kelsen’s General Theory of Law and State (1961) Edition, pp. 117-118 and the Pakistan case of the State v Dosso and Another11 [(1958] 2 Pakistan Supreme Court R 180 as authority for the contention that the 1966 Constitution was legally valid.12 The Court quoted Kelsen in extenso13, quoting pages 117-118 of the Pure Theory of Law,14 and page 220 of the General Theory of Law and State15 as herein under:
The principle of legitimacy

The validity of legal norms may be limited in time and it is important to notice that the end as well as the beginning of this validity is determined only by the order to which they belong. They remain valid as long as they have not been invalidated in the way which the legal order itself determines. This is the principle of legitimacy. This principle, however, holds only under certain conditions. It fails to hold in the case of a revolution, this word understood in the most general sense, so that it also covers the so-called coup d’état. A revolution, in this wide sense, occurs whenever the legal order of a community is nullified and replaced by a new order in an illegitimate way that is in a way not prescribed by the first order itself. It is in this context irrelevant whether or not this replacement is effected through a violent uprising against those individuals who so far have been the "legitimate" organs competent to create and amend the legal order. It is equally irrelevant whether the replacement is effected through a movement emanating from the mass of the people or through action from those in government positions. From a juristic point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated. Usually, the new men whom a revolution brings to power annul only the constitution and certain laws of paramount political significance, putting other norms in their place. A great part of the old legal order "remains" valid also within the frame of the new order. But the phrase "they remain valid" does not give an adequate description of the phenomenon. It is only the contents of these norms that remain the same, not the reason of their validity. They are no longer valid by virtue of having been created in the way the old constitution prescribed. That constitution is no longer in force; it is replaced by a new constitution which is not the result of a constitutional alteration of the former. If laws which were introduced under the old constitution "continue to be valid" under the new constitution, this is possible only because validity has expressly or tacitly been vested in them by the new constitution. The phenomenon is a case of reception (similar to the reception of Roman law}. The new order" receives,” i.e. adopts norms from the old order; this means that the new order gives validity to (puts into force) norms which have the same content as norms of the old order. "Reception" is an abbreviated procedure of law-creation. The laws which, in the ordinary inaccurate parlance, continue to be valid are, from a juristic viewpoint, new laws whose import coincides with that of the old laws. They are not identical with the old laws, because the reason for their validity is different. The reason for their validity is the new, not the old, constitution, and between the two continuity holds neither from the point of view of the one nor from that of the other. Thus, it is never the constitution merely but always the entire legal order that is changed by a revolution. This shows that all norms of the older order have been deprived of their validity by revolution and not according to the principle of legitimacy. And they have been so deprived not only de facto but also de jure. No jurist would maintain that even after a successful revolution the old constitution and the laws based thereupon remain in force on the ground that they have not been nullified in a manner anticipated by the old order itself. Every jurist will presume that the old order (to which no political reality any longer corresponds) has ceased to be valid, and that all norms, which are valid within the new order receive their validity exclusively from the new constitution. It follows that from this juristic point of view, the norms of the old order can no longer be recognized as valid norms.
Change of the Basic Norm

It is just the phenomenon of revolution which clearly shows the significance of the basic norm. Suppose that a group of individuals attempt to seize power by force in order to remove the legitimate government in a hitherto monarchic State, and to introduce a republican form of government. If they succeed, if the old order ceases, and the new order begins to be efficacious because the individuals whose behavior the new order regulates actually behave, by and large, in conformity with the new order, then this order is considered as a valid order. It is now according to this new order that the actual behavior of individuals is interpreted as legal or illegal. But this means that a new basic norm is presupposed. It is no longer the norm according to which the old monarchical constitution is valid, but a norm according to which the new republican constitution is valid, a norm endowing the revolutionary government with legal authority. If the revolutionaries fail, if the order they have tried to establish remains inefficacious, then, on the other hand, their undertaking is interpreted not as a legal, a law-creating act as the establishment of a constitution, but as an illegal act, as the crime of treason, and this according to the old monarchic constitution and its specific basic norm.

The Birth and Death of the State as Legal Problems.16

"The problem as to the beginning and ending of the existence of a State is a legal problem only if we assume that international law really embodies some such principle. Even though some authors advocate the opposite view, the whole problem, as usually formulated, has a specifically juristic character. It amounts to the question: Under what circumstances does a national legal order begin or cease to be valid? The answer, given by international law, is that a national legal order begins to be valid as soon as it has become -- on the whole – efficacious; and it ceases to be valid as soon as it loses this efficacy. The legal order remains the same as long as its territorial sphere of validity remains essentially the same, even if the order should be changed in another way than that prescribed by the Constitution, in the way of a revolution or coup d’état. A victorious revolution or a successful coup d’état does not destroy the identity of the legal order which is changes. The order established by revolution or coup d’état has to be considered as a modification of the old order, not as a new order, if this order is valid for the same territory. The government brought into permanent power by a revolution or coup d’état is, according to international law, the legitimate government of the State, whose identify is not affected by these events. Hence, according to international law, victorious revolutions or successful coup d’état are to be interpreted as procedures by which a national legal order can be changed. Both events are, viewed in the light of international law, law-creating facts. Again, injuria jus oritur, and it is again the principle of effectiveness that is applied."

The second authority on which the Court relied in its judgement was The State v Dosso and Khan17. In drawing the analogy with the Dosso case the Court concluded that:
Applying the Kelsenian principles, which incidentally form the basis of the judgement of the Supreme Court of Pakistan in the above case, our deliberate and considered view is that the 1966 Constitution is a legally valid constitution and the supreme law of Uganda; and that the 1962 Constitution having been abolished as a result of a victorious revolution in law, does not longer exist nor does it now form part of the Laws of Uganda, it having been deprived of its de facto and de jure validity. The 1966 Constitution, we hold, is a new legal order and has been effective since April 14, 1966, when it first came into force.18
The Court examined the evidence tendered to show that the new Constitution of 1966 had been efficacious and accepted by the people. This consisted of affidavits sworn by a large number of government officials. In addition, the Court was also satisfied that there was no opposition, there had been no challenge, the Government had been firmly established and that it had been stable. The issue of recognitions of the new Head of State by foreign nations was considered not to "strictly" have been within the scope of the inquiry19. It was however remarked that "recognition of the New Government had been accorded by all foreign countries which deal with Uganda."20
The following can be inferred from this case:

(i) The High Court had applied the Dosso case from Pakistan hook, line and sinker, so affirming a Commonwealth country judgement in pari material.

(ii) Hans Kelsen’s Theory of legitimacy as gauged by effectiveness had triumphed with ample proof that efficacy had indeed been achieved, unlike in Dosso in which the decision was only three days after the coup d’état and no proof of efficacy was tendered, let alone even being demanded by the Court.

(iii) The Court had also applied Hans Kelsen’s argument that laws from the old ousted legal order may remain valid in the new legal order only because validity has been expressly or tacitly vested in them by the new legal order, in particular the new Historically First Constitution of 1966.

(iv) International law principles of recognition of states had been applied in rationalizing and consolidating the domestic effectiveness doctrine of Hans Kelsen.21

(v) The events in Uganda show that a coup d’état can oust only the executive but retain the legislature and judiciary. In the Dosso case and other subsequent revolutions, in any cases being reviewed, it is only the judiciary which is usually preserved to a great extent. The events in Pakistan (1977) have gone on to show that even the judiciary can be seriously affected (vide infra).

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