SUPERIOR JUDICIARY OF PAKISTAN AND FUTURE USE OF THE DOCTRINE OF NECESSITY

Zahid Mahmood Mahmood

Abstract


The Superior Judiciary laid a foundation stone of militarism in Pakistan by granting a legal cover to the illegal acts of military Generals. Chief Justice Muhammad Munir was architect of the doctrine of Necessity upon which the later judiciary of the Supreme Court of Pakistan legalized the martial laws in Pakistan. Chief Justice Munir legalized the martial law of Iskander Mirza as it had stood the test of efficacy and called it a successful revolution. Till death, Justice Munir kept giving justification for the decisions which he made on the basis of doctrine of necessity. Kelsens’s theory of law was rejected by the Supreme Court in Asima Jillani case after the exit of a dictator. However, the Supreme Court again reversed its judgment and till 3rd November, 2007, it kept relying on the doctrine of necessity for its judgments to grant legal cover to the misdeeds of military generals. The question is how long the Supreme Court of Pakistan would swing between Kelsen’s theory of state necessity and Hugo Grotius’s concept of legality whenever a matter of extra constitutional power arises. Further, can we say that the Supreme Court has attained enough maturity that it would not resort to the doctrine of necessity if question of validity of military rule comes up before her?

 


Keywords


Supreme Court; Military; Pakistan; Politicians; Doctrine of Necessity

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