PHILOSOPHICAL MOOT

"The Constitution is not an instrument for the government to restrain the people, it is an
instrument for the people to restrain the government lest it come to dominate our lives and
interests." - Patrick Henry
The Pures!ns militarys actions clearly raise a sense of doubt about the coups democratic
legitimacy. Democracy, at its core, isnt best understood as a system of voting but rather a
moral just ideal of free citizens participating actively and equally in every stage of self-rule
and governance. Courts operate within a certain legal framework that had been established by
means of a democratic procedure, Pures!ns military toppled the constitution thereby toppling
the democracy of the country itself. Actions that inhibit democratic consolidation, regardless
of whether the government was elected or well-intentioned, cannot be seen as democratically
legitimate. And moreover, a military coup that takes control by mere force should not be
allowed to, as it in direct contradiction to a self-rule governed democracy.
Blackstone recognized clearly the supremacy of the parliament. His reasons for advocating
the separation of powers were of two sorts, first, specialization and efficiency and second the
protection of liberty. He also stated, when the legislative and the executive are in separate
hands, the legislative ensures not to entrust the executive with too much power. Since that
would lead to the subversion of its own independence and thereby the liberty of the country
as a whole.
Harts theory on legal positivism, the rule of recognition is an imperative test in determining
the legal validity of a particular rule and further unify the laws. He states that in order to
recognize a rule as valid and thus a rule of the system, it would have to arise out of a
convention among officials and upon being acknowledged as legitimate norm and accepted, it
would stand valid. The April Ordinance and further toppling the constitution of Pures!n
cannot stand valid under the rule of recognition since the decision did not arise out any sort of
convention. Moreover, the April Ordinance rule cannot be seen as a legitimate norm.
According to Rousseau, the state as it currently existed was corrupt and unjust, dominated by
the rich and powerful who misused power to further their own interest. The ideal state
according to him would be a genuine democracy that bound people together in freedom,
equality and civic devotion. He also argued for a social contract that ensure people their
freedom to choose their own leaders, thus enabling such a power will ensure that such
contracted is not broken by the system. In order for the people to reflect upon themselves as
free citizens under a constitution governed by self-rule, the act of bestowing free speech,
privacy and other necessities are essential. He believed in people submitting themselves to
the general will of the people.
Bentham, in his principle of utility, approves or disapproves based on general norms, any
action which has the ability to diminish the happiness of the party whose interests are in
question. This principle helps determine if the objective of the law in question is good for the

By Numair Ahmed BBA LLB 151343

people. In this case, the interests of the 60% majority who were silenced over military coup
were never considered.
Plato argued that the military must never mix with politics. While jurists practice in
respecting the rule of law, militaries are experts in fighting and winning wars, not how to
make judgments on matters of rights and democracy. Such a dominant difference existing
between both parties would hinder any swapping. In the present case, the military showed
little to no respect towards the existing constitution.
The court must adhere to the word of the law and nothing but the law, any deviating from the
word of the law must be eliminated in all senses. Moreover, in a democracy governed by self-
rule, the government must at all times respect the will of the people involving an assembly of
elected members. In the present scenario, the military coup was carried over the voices of
more than 60% of the population. It is the responsibility of the court to dismiss and overturn
any law that may impede the individual human rights of any citizen. The courts have been
powered with a legal backbone in order to ensure that the democracy stands rigid. The courts
in this case have clearly ignored the rights of the people of Pures!n.
The respondent might hold Kelsens pure theory of law in their favour. Kelsen in his own
words to Professor Stone stated that the theories that he had concluded over the years were
being misunderstood and misjudged, it was not in the least of his intention that his words be
used in the judicial sense. Any argument based on his theory would therefore find grounds for
dismissal.
For the petitioner, pray that the April Ordinance be invalidated: Prime Minister Bawilal
Hobutt be reinstated and further, the fundamental rights handed back to the people.

By Numair Ahmed BBA LLB 151343