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Sunday, October 18, 2015

Doctrine of Necessity: Tryst with Pakistan

Pakistan and the Doctrine of Necessity

The Pakistan Supreme Court

Pakistan must be the oddexception that has accepted the 'Doctrine of Necessity' in law and made it an instrument of state policy, TheDoctrine of Necessity flows from ancient Roman law which accepted that in case there was serious disorder in society, force could be used to restore order. In other words a government had the right to intervene andenforce restrictions for the common good,

This doctrine has never been used, as it is open to various interpretations and generally law court have avoided it, but in Pakistan this made an appearance in 1954 when the Chief Court of Pakistan ( later the Supreme Court) overturned a ruling of the Sind High Court and accepted thedoctrine of necessity on a reference by the then Governor General of Pakistan. This involved the dissolution of the Pakistan constituent Assembly.

Since that time this doctrine has been at the neck of Pakistan and has been used to justify military rule. The Pakistan Supreme court justified the rule of Ayub Khan and also in 1978 justified the military coup of General Zia ul Haq. In this the Supreme Court proved to be rubber stamp to legitimize military rule. Perhaps the judges had no choice and the failure to approve Martial law would have had very bad consequences for the justices.

In 1998 the Supreme Court again like a house wife justified the coup of general Musharaff. Earlier they had also helped General Zia to hang Zulfikar Ali Bhutto, in what is perceived as a kangaroo court. Pakistan has the dubious distinction in following the path of least resistance by invoking the Doctrine of Necessity to justify a military coup.

Things appear to have changed slightly now with the new Chief Justice I Choudhary passing a resolution against the use of this Doctrine in Pakistan in the future. One will have to wait and see if the observationof the CJP will stand the test of time.