Asian Research Thesis Index

Abstract

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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