Necessity as the mother of laws

The Maulvi Tamizuddin Khan case was the first time when the Doctrine of Necessity was hinted upon

When in 1955, Chief Justice Mohammad Munir said in one of his rulings that “necessity knows no law”, he never knew that this phrase would echo the language of chaos throughout Pakistan’s political history. He argued that the phrase was backed by such laws as Braxton’s maxim, “that which is otherwise not lawful is made lawful by necessity,” and further elaborated by the Roman dictum that ultimately “the well-being of the people is the supreme law.”

Munir used this to indemnify Governor-General Ghulam Mohammad’s high-handed moves against the Constituent Assembly but it would not end there. It would come up again three years later in 1958 when Ayub Khan imposed martial law and took over the government abrogating the 1956 Constitution, and then nearly two decades later in 1978 to legalise the military takeover of General Ziaul Haq. Another two decades later, in 2000, it reared its ugly head justifying General Pervez Musharraf’s overthrow of Nawaz Sharif’s heavy mandate.

The notion of the law of necessity argues that in certain situations the national legal order of a state is disturbed by a ‘revolution’ not considered by the Constitution. When this ‘revolution’ takes place it not only challenges the existing legal framework but serves to demolish the present Constitution. This basically translates into the fact that subversive actions can legally be taken by one man alone for the larger good, whatever that good may be.
The first time this doctrine was hinted at was in the Maulvi Tamizuddin case on March 21, 1955 when the Federal Court led by Munir legalised the dissolution of an entire assembly on the orders of one man. The full concept of ‘necessity’ came to the fore on October 27,1958 in the State vs Dosso case in which Munir validated the military takeovers of Iskander Mirza and Ayub Khan, observing that “a successful coup d’etat is an internally-recognised legal method of changing a constitution.” What he meant was that this seemingly illegal act was now made legal in such a way that a single military man could walk in and subvert the will of the people — described in Munir’s verdict as a “legalised illegality”.

In his book, Highways and Byways of Life, Munir himself noted that his decisions had been viewed “as the starting point of the misfortunes of this country”. That criticism could not have been truer.

The fact is that the imposition of martial law has never been envisaged by any constitution in Pakistan but our superior courts have always validated it and held that the new regime is always a transitory phase, representing constitutional deviation dictated by the utmost necessity. This ‘necessity’ has been the bane of all democratic dispensations.

A decade after Musharraf used the Doctrine of Necessity once again, the Supreme Court under Chief Justice Iftikhar Muhammad Chaudhry passed what is termed a landmark ruling. In its July 31, 2009 verdict on the judges who had taken oath under Musharraf’s Provisional Constitutional Order, the court declared that the November 3, 2007 emergency was illegal and, thereby, stressed that the Doctrine of Necessity had been buried forever. “… no such judge shall, hereinafter, offer any support in whatever manner to any unconstitutional functionary who acquires power otherwise than through the modes envisaged by the Constitution…” That was supposed to be the end.

However, with political turmoil hitting the country once again, whispers of extra-constitutional measures have begun to resurface. There are many who say that the Doctrine of Necessity has been buried by the current court. But let us not forget that the Doctrine of Necessity had also been invalidated in April 1972 in the Asma Jilani case when the Supreme Court ruled that the validation of Yahya Khan’s extra-constitutional steps based on the principle of ‘necessity’ was “unsustainable” — albeit after Yahya had already left power.

That didn’t seem to stop Zia from overthrowing Zulfikar Ali Bhutto only a few years later in 1977. Later, a ruling was also delivered terming Zia’s usurping of power illegal — but that too after he had died in 1988. Though these verdicts have lost their lustre because of their post-facto nature, they did set judicial precedents which didn’t seem to stop Musharraf in 1999, either.
Buried or not, exhumation is regular practice in Pakistan.