Pakistan and use of " Doctrine of Necessity" 57

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 Tamizuddin was the man who filed the appeal.

It is on record that the Sindh  High Court ruled in favor of the petition filed by Maulvi Tamizuddin. 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 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.

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 Musharraf who overthrew the elected civilian governments were given legitimacy.

Pakistan has the Dubious distinction of perhaps the only modern country to have made use of this provision of  Roman law