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Home > Doctrine of Law of Necessity: Political Resecussions of Judicial Decisions A Case Study of Pakistan 1954-2007

Doctrine of Law of Necessity: Political Resecussions of Judicial Decisions A Case Study of Pakistan 1954-2007

Thesis Info

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Author

Mahmood, Zahid

Program

PhD

Institute

University of Karachi

City

Karachi

Province

Sindh

Country

Pakistan

Thesis Completing Year

2016

Thesis Completion Status

Completed

Subject

Political science

Language

English

Link

http://prr.hec.gov.pk/jspui/bitstream/123456789/13279/1/Zahid_Mahmood_Law_Political_Science_2016_Univ_of_Karachi_16.06.2016.pdf

Added

2021-02-17 19:49:13

Modified

2024-03-24 20:25:49

ARI ID

1676724632929

Similar


This study deals with the history of use of „Doctrine of Necessity‟ in Pakistan by the judiciary from 1947 to 2007 to provide legal justifications for the military governments..Pakistan has seen as many as four Martial Laws andit is always feared that the sapling of democracy may be trampled upon any time by the military rulers owing to the bickering of the politicians. The supreme judiciary of Pakistan affixed a seal of legitimization on every unconstitutional step taken by the undemocratic forces in the name of demon Doctrine of Necessity which had political implications for Pakistan. Jinnah‟s vision of establishment of parliamentary democracy in Pakistan, which would have ensured peace, progress and stability in the country, was put aside and military dictatorships were imposed in the country.Consequently, disruption of democracy at times posed a number of challenges to Pakistan like Regional. Ethnic, Economic, Social, Legal and Sectarian etc,The underlying hypothesis of the study is that owing to the Doctrine of Necessity the military regimes got legal justifications and thus damaged the political stability of the country and thereby Pakistan is facing huge challenges like extremism, energy crisis and others. The Bench and Bar facilitated the dictators to achieve their vested interests.Therefore, it is of great importance to explore and investigate the legal history of Pakistan with special reference to the use of „Doctrine of Necessity.‟Much has been written on the political history of Pakistan but few have discussed the legal and constitutional history of Pakistan. Those who have discussed the constitutional history of Pakistan have not given proper attention to the „Doctrine of Necessity‟ which not only provided justification to the illegitimate rulers but gave them free hands to rule authoritatively. This study aims to investigate only this aspect of the legal history of Pakistan. Pakistan has seen as many as four Martial Laws. The first one was clamped by the Field Marshal Muhammad Ayub Khan in 1958 and continued till 1969. It is generally said that Pakistan recorded impressive economic growth and it is also regarded as the era of prosperity. But, there is one segment of critics who also opine that the notion of economic prosperity is merely a bubble which has no permanence in it and it vanishes as the military junta is out of the corridors of powers. It seems true in the case of Ayub khan as he left the office of President of Pakistan, then his edifice fell like a house of cards. He handed over the power to another military dictator General Agha Muhammad Yahya Khan (1969-1971). The world witnessed as how in his presence the country was rent-asunder in two parts. He also gave his own scheme of governing the affairs of country. He gave his legal frame work order as General Ayub khan gave his own Constitution of 1962. The compliant judiciary was ever ready to serve the military masters applying the doctrine of State Necessity as was set by their predecessor chief Judge of the then Federal Court Muhammad Munir. General Zia (1977-1988) took reins of country with a promise to handover the control of country to the elected representatives with in ninety days. But, this didn‟t happen as his control on the civil administration lasted for almost eleven years. He made innovations with the constitution of 1973. Its format was changed from parliamentary to a quasi-parliamentary and quasi presidential. An infamous 8th amendment was inserted which made the President powerful to dissolve the assembly to his whims. General Zia enjoyed the power raising the slogan of Islamisation in country. To save his rule, it was the then Supreme Court of Pakistan which came to succour using the Doctrine of Necessity despite the fact that the same Supreme Court in its earlier case of Mss Asima Jillani had termed the legalisation of Military rule as ultra vires. General Zia used the 8th amendment and sent packing the government of Junejo as he had developed differences with him. The end of Zia era marked the beginning of controlled and guided democracy being run by the new players such as Benazir Bhutto and Mian Nawaz Sharif. However, the political bickering between both the leaders paved way for military to enter into the corridors of politics. In October, 1998, General Pervez Musharraf took over the reins of country. The Supreme Judiciary of Pakistan again helped military to legalise its unconstitutional, illegitimate and illicit rule which lasted till 2008.
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ڈاکٹرسید عبدالعلی

ڈاکٹر سید عبدالعلی
افسوس ہے کہ آج قلم کو ایک ایسی برگزیدہ شخصیت کا ماتم کرنا پڑرہا ہے جو تنہا ایک شخص کا نہیں بلکہ علم و عمل کا ماتم ہے، دین و تقویٰ کا ماتم ہے، اخلاق و شرافت کا ماتم ہے، اس شخصیت کو دنیا ڈاکٹر سید عبدالعلی ناظمِ ندوۃ العلماء کے نام سے جانتی ہے، وہ تنہا ڈاکٹر یا ندوۃ العلماء کے ناظم نہ تھے، بلکہ اس زمانہ میں اپنے اوصاف، خصوصیات اور دینی و اخلاقی کمالات میں یگانہ تھے، ان کا نسبی تعلق مشہور عارف باﷲ حضرت سید شاہ علم اﷲ رحمتہ اﷲ علیہ رائے بریلوی کے خاندان سے تھا جس میں علم و عمل، دین و تقویٰ، فقر و تصوف اور ارشاد و ہدایت کی روایات صدیوں سے چلی آرہی تھیں، حضرت سید احمد شہید رحمتہ اﷲ علیہ اسی دووانِ عالی کے گوہر شب چراغ تھے۔
خاندان کی یہ ساری روایات ڈاکٹر صاحب مرحوم کے حصہ میں آئی تھیں، ان کے والد بزرگوار مولانا حکیم سید عبدالحئی صاحب رحمتہ اﷲ علیہ اپنے زمانہ کے مشہور عالم، نامور طبیب، اہل قلم فاضل اور صاحب زہد و تقویٰ بزرگ تھے، ڈاکٹر عبدالعلی صاحب ان کے خلف الصدق تھے، ان کی ذات قدیم و جدید تعلیم کا سنگم تھی، انہوں نے پہلے عربی اور طب کی تحصیل کی، اس کے بعد انگریزی پڑھی اور ڈاکٹری کی تعلیم حاصل کی، یہ وہ زمانہ تھا جب ڈاکٹروں کی زندگی مغرب زدگی اور انگریزی طرز معاشرت کا نمونہ ہوتی تھی، مگر ڈاکٹر عبدالعلی صاحب کی فطرت ایسی صالح و سلیم تھی اور ان کی رگوں میں ایسے بزرگوں کا خون تھا کہ جدید تعلیم کے مادی اثرات سے ان کا دامن بالکل پاک رہا، حتیٰ کہ ان کی ظاہری وضع قطع بھی خالص اسلامی رہی ناواقف لوگ ان کو دیکھ کر گمان نہیں کرسکتے تھے کہ ان کو...

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