In despotic governments, the governments have usurped, in a similar manner, both the State and the people: hence all arbitrary doctrines and pretensions concerning the supreme, absolute, unbridled and uncontrollable powers of governments. In almost every nation, which has been denominated free, the State has assumed a supercilious pre-eminence above the people who have formed it. Hence, the haughty notions of state independence, state sovereignty, and state supremacy.
A few weeks ago, on June30, a five-member bench of the Lahore High Court, decided the fate of the run-off for the Chief Minister election held on April 14, in light of the exegesis of the Supreme Court of Pakistan on Article 63A of the Constitution. Regardless of whether the Party head proceeds to take punitive action against the defected member, as envisaged under Article 63A(b), the Court ruled that the vote of any member of a Parliamentary party that is cast contrary to directions issued by the Parliamentary head would not be counted and must be disregarded. More so, on recounting if the then Chief Minister Hamza Shehbaz loses the required majority, required by Article 130(4) of the Constitution and Rule 20 of the Rules of Procedure of the Provincial Assembly of Punjab, 1997, the Notification of his appointment to the office of the Chief Minister would be deemed to have been quashed, albeit the functions performed and exercised by the then Chief Minister, who awaits indictment in a Rs 16-billion money laundering case booked by the Federal investigation Agency, and his cabinet would be protected under the “de facto doctrine”. Interestingly enough, no de facto regime has discarded the Constitution altogether. But, through this mechanism, the Constitution has survived in name, if not always in practice.
The application of the de facto doctrine simply meant that although an office was held illegally, decisions rendered by it before the judgment of the court would hold ground and must have been accepted for all practical purposes. In fact, the doctrine of de facto ensures smooth running of the system and gives validity to the acts performed in the interests of a third party by an officer or authority
Courts have traditionally shielded the acts of malapportioned or otherwise illegally constituted legislatures from dissolution by employing the “de facto doctrine,” an ancient common law policy tool with its medieval origin. In its most basic form, the de facto doctrine seeks to safeguard the acts of unlawful but well-intentioned public officials from collateral attack out of concern for third-party reliance and a bald recognition of necessity. The de facto doctrine and its variants have been used as tools of equity for centuries to affirm the validity of acts executed by public officials lacking the authority. In other words, the doctrine may be used to protect reliance on administrative acts, but it may not be employed to harm others.
In fact, the acts of a de facto officer or authority are as binding as those of a de jure officer. The Latin phrases, de facto and de jure, are closely related concepts. De facto means to have a state of affairs that is true in fact, but that is not officially sanctioned. In contrast, de jure means a state of affairs that is in accordance with law. The acts of officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding as if they were the acts of officers de jure.
In substance, the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where those interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The official acts of such persons are recognized as valid under the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. It is no doubt well settled that the acts of the officers de facto performed by them within the scope of their assumed authority in the interest of the public or the third persons and not for their own benefits, are generally held valid and binding as if they were the acts of the officers de jure.
A reading of the said does not give an omnibus authority to hold that every illegal act or acts performed which smacks of very many illegalities and incongruities should be merely ignored and validated. It has to be kept in mind that even while applying the de facto doctrine whether such acts performed were aimed at the prevention of public and private mischief and for the protection of public and private interest.
The application of the de facto doctrine simply meant that although an office was held illegally, decisions rendered by it before the judgment of the court would hold ground and must have been accepted for all practical purposes. In fact, the doctrine of de facto ensures smooth running of the system and gives validity to the acts performed in the interests of a third party by an officer or authority. However, its application is dependent on three prerequisites:
- There should be possession of office and performance of duties attached to it;
- There should be some apparent right to the office and acquiescence in possession thereof by the public; and
- The act in question should not be for the usurper’s own interest.
Thus it is seen that the courts of England and of the USA both lay down the rule that in determining whether a man is a usurper, whose official acts are absolutely null and void, or a de facto officer, whose acts have the force of de jure acts in all except direct proceedings, dependence is placed simply upon the sufficiency and extent of powers exercised by him from the title to his office. As Judge Sir Francis Buller puts out in State v. Carroll: “An officer defacto is one whose acts, though not those of a lawful officer, the law upon principles of policy and justice will hold valid so far as they involve the interests of the public and of third persons.” Later, the American Courts also accepted and applied the English rule. If the question is answered in the affirmative, he is an officer de facto; if not, he is a mere intruder.
