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Pakistan and 'Doctrine of Necessity':only Country in the World to Use This Law to Justify Military Rule

MG is a keen political observer and commentator who has a ringside seat to the turbulent years of the present political scenario

Justice I Choudhry who laid to rest bogie of Doctrine of necessity

Justice I Choudhry who laid to rest bogie of Doctrine of necessity

introduction

The "doctrine of necessity" is an ancient Roman law that has existed for almost 2000 years. It states that it is justifiable to take over political power in any country when there is a breakdown of Law and order and chaos is the watchword. This law is to be used only in exceptional circumstances and the purpose is to restore the rule of law when anarchy prevails.

The law metamorphized over the centuries but it has not been given any importance. The doctrine was fine-tuned by the medieval jurist Henry de Bracton(1210-68). Another legal luminary is William Blackstone( 1723-80) further added to its theory. He also advanced the theory of extra-legal action when there was a breakdown of Law and order and constitutional machinery.

This legal tenet has been studied for the last 2000 years but it has been used very rarely. In the 20th century, there is no record that this doctrine was put to use. It was not even used in Germany during the rule of Hitler or Stalin in Russia. However, repeated use of this doctrine has been seen in Pakistan where at least on four occasions the Pakistan Supreme Court has justified martial law under this doctrine.

Somebody was needed to bell the cat and this came in the form of justice Chowdhury, chief justice of the Pakistan Supreme Court. He realized that previous judges had been subservient to the military rulers and generals and always justified martial law.

Chief Justice Iftikhar Muhammad Chaudhry in a landmark judgment in the case of Sindh High Court Bar Association (SHCBA) laid to rest the extra-constitutional 'doctrine of necessity' and the possibility of future military regimes in Pakistan.


pakistan-and-doctrine-of-necessityonly-country-in-the-world-to-use-this-law-to-justify-military-rule

Doctrine of Necessity in Pakistan.

Pakistan is perhaps the only country that has invoked the doctrine of necessity a number of times. The ball was set rolling in 1954. At that time the then chief justice of the Federal Court Justice Mohammed Munir upheld the decision of Governor-General Ghulam Mohammed in dismissing the elected government and prime minister Khawaja Nizummudin. After this unconstitutional step, the president of the constituent assembly Maulvi Tamaziddun Khan a Bengali filed a case in the Sind High Court against the decision of the governor-general. The Sind High Court declared the decision Ultra Vires but the government appealed to the Federal Court where the chief justice Mohamed Munir ruled in favor of the government.

This was a very important decision and much later Mohamed Munir regretted that he had upheld the dismissal of an elected Prime Minister under the doctrine of necessity. In his judgment, the chief justice quoted Bracken," that which is otherwise not lawful is made lawful by necessity."

Legitimizing Martial law

The judgment of Mohamed Munir became a precedent and one after another the Pakistani courts began to uphold the doctrine of necessity. it must be mentioned that in entire Asia since 1945, no other country has legitimized martial law under the doctrine of necessity.

On October 7, 1958, president Iskander Mirza imposed martial law and made general Ayub Khan the chief martial law administrator. General Ayub made some important changes after he had removed Iskander Mirza at the point of a gun and exiled him to London. The word the Islamic Republic was removed and only the word Pakistan was used. He also amended the family laws wherein multiple marriages were discouraged and marriage could not take place without the consent of the first wife.

The Pakistan Supreme Court was now faced with the dilemma of the legitimacy of martial law. In a unanimous decision, the Supreme Court upheld the imposition of martial law and termed it a historical necessity. The Supreme Court justified its decision of legitimizing martial law by saying that its decision was based on Hans Kelson's theory of legal positivism.

Overall the effect of the supreme court decision was negative and jurists all over the world commented adversely on it. Many felt that the Supreme Court had just acted as a rubber stamp to legitimize martial law.

This was not the end and in two other cases in 1977, when general Zia imposed martial law, and 1998 when general Musharraf did the same thing, the supreme court again rubberstamped the legitimacy of martial law.

The Supreme Court of Pakistan, unfortunately, has not covered itself with glory even during the murder trial of prime Minister Zulfikar Bhutto. Firstly, they allowed the trial to commence in the Punjab High Court when a murder trial is supposed to be tried in the sessions court. Secondly, without any corroborative evidence, the Supreme Court upheld the decision to hang Zulfikar Bhutto. I bring this out only to show that the Pakistan Supreme Court has just been like an accessory to martial law. This only changed when justice Chowdhury became the chief justice of Pakistan.

Justice Choudhry did not buckle down under the pressure of general Musharraf, even when he was dismissed by the president, he continued judicial activism. Ultimately Musharraf had to go and Choudhury made a name for himself in the judicial history of Pakistan.




pakistan-and-doctrine-of-necessityonly-country-in-the-world-to-use-this-law-to-justify-military-rule

Last word

Much water has blown down since the judgment of Mohammed Munir in 1955 that put Pakistan back by half a century by legitimizing the doctrine of necessity. This doctrine is not accepted anywhere in the world.

However, I don't think this doctrine is going to be used again in Pakistan because it has outlived its utility and times have changed. Chief Justice Iftikhar Chowdhury has made a name for himself in the judicial history of Pakistan and one has a feeling that had justice Mohamed Munir and others who followed him shown some courage, martial law would have been dispensed with decades back. I am reminded of a book by Alistair Mclean titled 'Fear is the key, ' that perhaps may have dictated the decisions of the Pakistan courts.

Justice Chowdhury has done a great service in trying to bury the bogey of ‘doctrine of necessity' yet there is no guarantee that at a future date the judiciary may again refer to decisions of the Supreme Court from case history and justify a subsequent takeover by the Pakistan army. The question arises how can this really be stopped? I do not think that this scenario will ever be erased because the Pakistan army has now been given a constitutional role in the governance of the country and this is where the shoe pinches and the doors are open for the ‘doctrine of necessity’ being resuscitated again.

If anybody is interested, he can read more about the doctrine of necessity and Pakistan in the undermentioned references.

https://www.academia.edu/17246941/Doctrine_of_Necessity_Role_in_the_Instability_of_our_Democratic_System

https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1128&context=cilj

This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.

Comments

MG Singh emge (author) from Singapore on May 29, 2021:

Bill, as always it's a pleasure to read your comment, it's so invigorating.

MG Singh emge (author) from Singapore on May 29, 2021:

Pamela, it's so nice you commented.

Bill Holland from Olympia, WA on May 29, 2021:

As always, I learn through your articles. You fill in holes in my knowledge I didn't even know existed, and for that I send my thanks.

Pamela Oglesby from Sunny Florida on May 29, 2021:

This is an interesting, well-written article about what I considered an atrocity. It seems the people of Pakistan have really suffered with this mentality. I think this is a very good article.

MG Singh emge (author) from Singapore on May 29, 2021:

Tom, Thanks, Mohd Munir by his judgment ruined Pakistan. Pak judiciary was indeed spineless, wonder how they repeatedly approved military martial law under 'Doctrine of necessity." Nowhere else like this in the world.

tom on May 29, 2021:

mohd munir famous judge pre 1947,he ruined pakistan,bengali hamdur rehman 1971 inquiry,his son major sher ur war hero ,stayed in pakistan after 1971,sole hindu judge rana bhagwan dass,judicary spineless,bhutto judicial mudrer,parsi dorab patel judge,doctrine of necessity misused,pakistan is only a barrack for army.pillars of islamic state king,landlords,mullahs and army.khalsa raj of ranjit singh superior and secular,colonial hangover saved indian army ,no extension to chiefs ,pakistan extension coup

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