92 Pages Posted: 25 Apr 2007
The first part of this article is a survey of all known judicial responses to coups d'etat in post colonial common law settings. Although these different coups unfolded in diverse contexts the courts validated all incumbent usurper regimes with one exception. Kelsen's theory of revolutionary legality furnished the primary doctrinal vehicle to reach this result. While some courts adopted Kelsen's proposition that efficacy of a coup bestows validity in an unadulterated form, others modified this with or substituted it by doctrines of state necessity, implied mandate, and public policy. Following Kelsen, they fail to distinguish between legitimacy and validity of a legal order, using the terms interchangeably. The second part of the article evaluates the four possible judicial responses: validation and legitimation of usurpation, strict constitutionalism, resignation of office, and declaration of the issue to be a nonjusticiable political question. It is proposed that declaring the validity and legitimacy of a regime born of a coup d'etat a nonjusticiable political question is the most appropriate judicial response because it is doctrinally consistent and principled, morally sound, politically neutral, and institutionally prudent. The article argues that the legitimacy of a usurper regime is a political and moral issue to be resolved through the political processes of a society, and that the validity of a successful coup d'etat is a meta legal question which belongs to the province of legal theory. As such, both the legitimacy and validity of a regime born of a successful coup d'etat fall outside the jurisdiction and competence of the courts. Designation of these as nonjusticiable political questions will insulate the courts from turbulent politics, deny the usurpers judicially pronounced validity and legitimacy, and facilitate the survival of the courts and the rule of law.
Keywords: Coup d'etat, Martial Law, Common Law, Judicial Review, Third World, Postcolonial, Jurisprudence, Kelsen, doctrine of necessity, Treason
JEL Classification: K10, K30, K33, K19, K40, K49
Suggested Citation: Suggested Citation
Mahmud, Tayyab, Jurisprudence of Successful Treason: Coup D'Etat & Common Law. Cornell International Law Journal, Vol. 27, p. 49, 1994. Available at SSRN: https://ssrn.com/abstract=982488