Doctrine of necessity — a portal to Martial Law?
April 30, 2009 1 Comment
We often hear about this term “Doctrine of Necessity”. I was just getting surpassingly curious to learn the nomenclature. What I found is something to learn how a martial law can be validated by Supreme Courts.
In 1954 – just seven years after the creation of Pakistan – Governor General Ghulam Mohammad dissolved the first constitutional assembly and the Government of Prime Minister Khawja Nazim Uddin. The President of the assembly, Moulvi Tamiz Uddin, challenged him in the Sindh High Court and won. Hence, the dissolution was held to be illegal and unconstitutional. On appeal to the Chief Court of Pakistan, which was later renamed as the Supreme Court of Pakistan, Chief Justice Munir gave a final verdict in favor of the Governor General. The basis for his decision was the “Doctrine of necessity”, meaning that – to preserve the country – the constitution had to be abandoned.
Ohh yes, Pakistan has a history of repeating the phenomena. This Doctrine of necessity was repeated again when in 1958, Field Marshal Ayub Khan imposed a Martial Law in Pakistan – dissolving all the assemblies (national and provincial) – and abrogated the 1953 constitution. This Martial Law was challenged in Supreme Court of Pakistan, but thanks to our Judges who made use of “Doctrine of Necessity” again and put the nation under another Martial Law by validating it. The dictator, Ayub Khan, ruled 11 years.
I’ve heard of a proverb “To stumble against the same rock twice is a proverbial disgrace”. This proverb was disgraced one again when in 1977 General Zia ul Haq imposed another Martial Law and abrogated the 1973 constitution which was unanimously approved by all Pakistani political parties of that time. Nusrat Bhutto (Mother of Benazir Bhutto) filed a suit against the coup – but obviously the doctrine of necessity sparked and Zia ul Haq’s coup was validated. Thanks to Supreme Court and the then Judges.
In 1999, General Pervez Musharraf also disgraced the same proverb by imposing Martial Law in Pakistan overthrowing Nawaz Sharif’s government – and abrogating 1973 constitution. Zafar Ali Shah (MP from PPP) challenged the coup in Supreme Court of Pakistan, but same doctrine of necessity twinkled hence validating the coup of General Pervez Musharraf.
It’s also said that whenever Pakistan’s top judges including the Chief Justices of Pakistan have been faced with such critical situation on the constitution or military rule, they have gone to the door of General Headquarters in order to be told what to iterate in the Supreme Court. The iteration always remained persistent, and its genesis has always been associated with this strange idea known as the “doctrine of necessity”.
A day before Supreme Court had to give a final verdict whether to sentence General Musharraf or validate it – Chief Justice Saeeduzzaman Siddiqui went to GHQ for a briefing. The next day, yes of course, the same doctrine of necessity was used and the coup was upheld. Moreover, giving military dictator some extra powers along with the amendment of 1973 constitution.
It’s also reported by one of the retired judge of Supreme Court who also served as a Chief Justice of Sindh High Court – that when the Supreme Court judges went to take their oath of office under the new military government in 2000, they were presented with empty pieces of paper from which to read. The then CJ Saeeduzzaman Siddiqui was the one to boost the judges: Hey, hurry up – we’ve to save the country so take the Oath.
Since Chief Justice Munir sacrificed constitutional law, the judiciary of Pakistan has been forced into a role not as the arbiter of justice but as the defender of the armed forces – to welcome them as the custodian of President House rather than guarding the borders. Had CJ Munir not breached the responsibilities he was delegated to – on the name of “Doctrine of Necessity”, we would not have been facing any Martial Laws in all these 62 years after Independence.