DISTINGUISHING LEGALITY AND LEGITIMACY OF COUP D’ÉTAT: LOOKING BEYOND KELSEN

1. Introduction Political history is replete with various types of extra-constitutional transformation of governmental power, coup d’état being the commonest one.1 All states in Latin America, most of the states in Africa, many states in Asia, and some of the European states have experienced at least one coup d’état. Military take-over of power is a continuing threat for budding democracies, and this threat is supposed to remain out there for indefinite future to come. 2 The matter of coup invariably ends up being probed by courts of law in some form or other. Facing such a question, apex courts of different countries took diverse routes at different junctures of history, thereby giving rise to an incoherent set of principles regarding determination of legitimacy of coups. 3 This paper argues that the incoherency of determining principles in coup-d’état cases are attributable, at least partly, to the misconstruction and 1 Starting from early Roman, Athenian and Greek city-states, continuing throughout the medieval ages, coup d’état got its final expression in post-colonial states after the Second World War. Eric Carlton mentions the story of ouster of the emperor Commodus by one of the most distinguished generals of Rome Petrinax as early as in 192 A. D.—Petrinax himself being ousted and killed in a counter-coup in 193 A. D. See generally ERIC CARLTON, THE STATE AGAINST THE STATE: THE THEORY AND PRACTICE OF THE COUP D’ÉTAT (1997) (focusing on the coup d’état using examples from classical Athens, republican Rome, Mughal India, Egypt, Japan, and Iran). 2 Steven R. David thinks that “coups are likely to persist in the third world as long as power is concentrated in a narrow elite that succeeds in denying meaningful political participation to the people.” STEVEN R. DAVID, THIRD WORLD COUPS D’ÉTAT AND INTERNATIONAL SECURITY 6 (1987). 3 In a study on Pakistan, Ghana, Southern Rhodesia (now Zimbabwe), Uganda, Nigeria, Cyprus, Seychelles, Grenada, Lesotho, Transkei, and Bophuthatswana, Tayyab Mahmud found that courts adopted as diverse principles as ‘doctrine of efficacy’ propounded by Hans Kelsen, ‘doctrine of necessity,’ ‘doctrine of implied mandate,’ ‘doctrine of public policy’ and so on. See Tayyab Mahmud, Jurisprudence of Successful treason: Coup D’état and Common Law, 27 CORNELL INT'L L. J. 49 (1994). © Universal Multidisciplinary Research Institute Pvt Ltd International Journal of Law and Legal Jurisprudence Studies :ISSN:2348-8212:Volume 3 Issue 4 2 conflation of the concepts of ‘legality’ and ‘legitimacy.’ The courts have failed to strike a balance between the strict formalism of legality and the practical realism of legitimacy. The courts either spoke the language of strict constitutionalism ignoring the reality of the coup altogether, or saw things through the prism of pure theory of law unconnected with the mores of the society in question. A pragmatic coupling of the concepts of legality and legitimacy, appreciating what they share and how they differ, would enable them to devise a coherent set of principles applicable in coup related cases.