Lawyers, protesting against the suspension of the Chief Justice, held a mock funeral ceremony for the notorious Doctrine of Necessity on June 26, 2007, at the Lahore High Court Bar Associations office. At this ceremony the lawyers pledged that they will not let the Doctrine of Necessity take root in countrys political system and allow it to suppress democracy again. They also took the funeral procession to different streets of Lahore, the capital of Punjab province, where people gathered around shouting slogans against the military government and demanded the reinstatement of the Chief Justice. The speakers at the funeral procession also criticized the larger bench of the Supreme Court who still, according to them, are still unable to decide the Chief Justices case on merits.
The Doctrine of Necessity was always used by the Pakistan judiciary whenever an elected government was thrown out of power by extra constitutional forces. This doctrine was first used in 1954, just seven years after the creation of Pakistan. The Governor-General, Ghulam Mohammad, dissolved the first Constitutional Assembly and the government of Prime Minister Khawja Nazim Uddin. This motion was challenged in the Sindh High Court, which held that the dissolution had been illegal and unconstitutional. However, on appeal the Chief Court of Pakistan, which was later renamed Supreme Court, decided that the governor-general had acted correctly. Chief Justice Munir thus created the so-called doctrine of necessity.
After this ruling, whenever elected governments were overthrown by martial law the courts had allowed the ultra constitutional actions of the army as legal, according to Doctrine of Necessity. The inventors of these theories are the late Mr. A.K. Brohi and Mr. Shareef uddin Peerzada, who were lawyers working on behalf of the government at the time. Mr. Peerzada is still the lawyer of President General Musharraf, who also made use of this doctrine when the state of martial law he declared was challenged in 2000.
Since the creation of Pakistan, the army and the bureaucracy have had a good friend in the judiciary. The latter repeatedly allowed the non-elected forces of the state to do as they pleased in the name of saving the country.
The Doctine of Necessity is the absurd idea that it is legally justifiable to abandon the constitution in order to preserve the country. According to this doctrine, the army can do no wrong, no matter how illegal or unconstitutional its actions may be. The doctrine was used several times to throw out an elected government and drop a constitution.
In 1958, General Ayub Khan imposed martial law, dissolving parliament and abrogating the constitution of 1956. His coup was challenged in the Supreme Court. After a briefing at the armys general headquarters, the judges decided that the military was acting in accordance with the doctrine of necessity. The general ruled for nearly 11 years, during which all civil liberties were suspended.
In 1977 General Zia ul Haq dissolved parliament and abrogated the constitution of 1973. The chief justice toddled off to the headquarters before announcing the court’s judgment in favour of General Zia, and indeed even in front of him. This decision, of course, was based on the doctrine of necessity. The military enjoyed another 11 years of power undisturbed by the courts.
When deciding on the constitutionality of the military coup of 12. October 1999, the Supreme Court referred once more to the doctrine of necessity. At the time, it even gave General Pervez Musharraf unlimited power to amend the constitution as he pleased. Some in Pakistans legal circles claim that this decision was literally written outside the court and handed to the judges to pronounce without them even having had time to read it properly. In any case, the regime had manipulated the composition of the Supreme Court beforehand.
The Asian Human Rights Commission supports the protest of the lawyers against the Doctrine of Necessity and for the restoration of a free and independent judiciary. The lawyers of Pakistan feel a sense of humiliation at the past history of the Pakistan judiciary who until now has never made an attempt to expose the hypocrisy contained in the doctrine of necessity and to defend constitutionalism as understood in a liberal democracy.
