Doctrine of Necessity in Pakistan Law and Its Interpretation by Pakistan Supreme Court
The doctrine of necessity is a legal term that seeks to justify an action carried out by extra constitutional authority to restore order. This doctrine is based on the writings of the jurist Henry de Bracton (1210-68) and later William Blackstone (1773-68) an English Jurist. Both jurists lay down that an act to restore order could come under the purview of the ‘Doctrine of Necessity.
This doctrine has never been used in England or for that matter in the Anglo Saxon world, but it has been liberally interpreted in Pakistan. Out of all the major nations of the world Pakistan is one nation that has repeatedly upheld changes in Pakistan’s political environment under this doctrine.
The first time this doctrine appeared on the scene in Pakistan was in 1954. At that time the Governor General of Pakistan Ghulam Mohammed dismissed the constituent assembly on the ground that the assembly did not represent the people of Pakistan. An appeal against the Governor General's order was filed in the Sind High court by the President of the Constituent Assemby Maulvi Tamizzuddin.
The Sind high court ruled in favor of the petition filed by Maulvi Tamizzuddin. But in an appeal which was heard in the Chief Court of Pakistan (later designated as the Supreme Court), Justice Muhammed Munir set aside the verdict of the Sind High Court and ruled in favor of the Governor General. The court relied on the doctrine of necessity as enunciated in Roman law and articulated by Ivor Jennings which stated that the well being of the people was the supreme law.
This decision of Justice Munir was to have far reaching effect on Pakistan politics and on a number of occasions the Supreme Court of Pakistan justified Military Coups. The court justified the military coup by general Zia ul Haq which overthrew the elected civilian Prime Minister Zulfikar Ali Bhutto.
This had a nefarious fall out and ultimately led to Bhutto being hanged as a common criminal for a crime for which no legal evidence was available. In the hanging of Bhutto the Pakistan Supreme court which had earlier upheld the rule of Zia under the doctrine of necessity also acquiesced in the hanging of Bhutto.
The judgment of Justice Munir thus had a deleterious effect on Pakistan politics. Later he expressed his regret that he had invoked the doctrine of necessity in 1954, but the judgment of Justice Munir continued to haunt Pakistan. In 1998 when General Pervez Mushraff in a coup overthrew the elected government of Nawab Sharif the Pakistan Supreme Court again justified the coup on the grounds of the law of necessity. The law of necessity thus became a convenient way out to justify military take over’s.
The wheel has now turned full circle and the new Chief Justice of Pakistan Iftekar Choudhry in 2009 has come out with a far reaching observation. He has announced that the doctrine of necessity needs to be buried and never used in Pakistan.