Wednesday, January 9, 2019

"Doctrine of Necessity" and its Sordid Connection with Pakistan

What is " Doctrine of Necessity" and its Sordid Connection with Pakistan


“Doctrine of necessity” is a legal term. This is a term used in constitutional law and is as old as history. What does it mean? It means that a government can resort to extra-constitutional authority in case there is a breakdown in law and order. The purpose is to restore order in a situation when anarchy rules. The Romans used this doctrine in the occupied lands. Later in the 13th century, the doctrine was given a legal cover by the jurist Henry de Bracton (1210-68).

Theory of Blackstone and Henry Bracton

Henry Bracton was perhaps the first to give a proper legal framework to this theory. He lived during the 13th century and was greatly influenced by the conditions in England at that time.

The doctrine was further revised by William Blackstone (1773-68) an English Jurist. Both jurists had a common thread that this doctrine was a necessity, in case there was a breakdown in law and order. The crucial point is “breakdown in law and order”. There is a related question as to who will decide this. The jurists did not amplify on this matter.
In the 20th century, the doctrine was extensively studied and commented upon by the English Jurist Sir Ivor Jennings( 1903-62)

‘Doctrine of Necessity’ has never been used in England. But it has been used in Germany by Hitler and now in Pakistan. Pakistan is one nation that has repeatedly upheld changes in Pakistan’s political environment by military coups under this doctrine. This makes sad reading.

Doctrine of Necessity and Pakistan

The Doctrine of Necessity has been known for over 2000 years, but it has been rarely invoked in modern history. The state of Pakistan has however relied on this doctrine to justify military coups and judicial political hangings like of Zulfikar Ali Bhutto by the army general Zia ul Haq.

The first time this doctrine was used in Pakistan was in 1954. The events are now well known. The then Governor General of Pakistan Ghulam Mohammed dismissed the constituent assembly. He took this unconstitutional step as he felt that the assembly did not represent the people of Pakistan. It was a partisan step and an appeal against the Governor General’s order was filed in the Sind High court.

The President of the Constituent Assembly Maulvi Tamizzuddin was the man who filed the appeal. It is on record that the Sind High Court ruled in favor of the petition filed by Maulvi Tamizzuddin. The Governor General went in appeal to the Chief Court of Pakistan (later the Supreme Court). The then Chief Justice Muhammed Munir seeing the wind blowing with the army breathing down his neck ruled in favor of the Governor General. Justice Munir relied on the doctrine of necessity as enunciated in Roman law and further enunciated by Ivor Jennings. This was a sad day for Pakistan.

Last word

This decision of Justice Munir became a precedent and on a number of occasions, the Supreme Court of Pakistan justified Military Coups. Thus military coups against elected governments by General Zia ul Haq and general Mushraff who overthrew the elected civilian governments were given legitimacy.
The Supreme Court of Pakistan also consented to the hanging of Zulfikar Ali Bhutto. Not something Pakistan should be proud of.

in 2009, the wheel turned full circle and Chief Justice Choudhry of Pakistan in a landmark judgment declared Martial Law as unconstitutional. This was after the exit of General Musharaff. I hope this ruling stands the test of time for the future.

All photos from wiki free