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Gilllani Law College, BZU

Assignment On
Doctrine of Necessity

Subject
Constitutional Development of Pakistan

Submitted To
Dr. Muhammad Bilal

Submitted By
Ahmad Zeeshan

Roll No. 27

Section-C

2017-22
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Table of Contents
Introduction ………………………………………………………………………………………………………..3

Definition……………………………………………………………………………………………………………..3

Doctrine of Necessity Invoked……………………………………………………………………………..3

Fruits of Justice Munir’s Doctrine of Necessity…………………………………………………….5

Dasso Case………………………………………………………………………………………………………….6

End of Misuse of Doctrine of Necessity ………………………………………………………………7

Interpretation of Constitution…………………………………………………………………………….8

Conclusion …………………………………………………………………………………………………………9

Reference………………………………………………………………………………………………………….10
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Introduction

 The term Doctrine of Necessity is used to describe the legal basis for a controversial 1954
judgment in which Pakistani Chief Justice Muhammad Munir validated the extra-
constitutional use of emergency powers by Governor General, Ghulam Mohammad.
In his judgment, the Chief Justice cited Bracton's maxim, 'that which is otherwise not
lawful is made lawful by necessity', thereby providing the label that would come to be
attached to the judgment and the doctrine that it was establishing.
 The Doctrine of Necessity was also invoked in 1985 in Grenada to permit a murder trial
to continue in courts that had been brought into being by an extra-constitutional decree.

Definition of Doctrine of Necessity

 A principle whereby a normally criminal act is justified by the necessity of preserving

something of greater utilitarian value than that lost or sacrificed; not to be confused
with  self-defence.
 The principle that, in a situation of emergency or exigent  circumstance, a state may
legitimately act in ways that would normally be illegal.
 The principle that the laws of an illegal government should be deemed valid insofar as
they do not contradict the constitution, justified on the basis that maintenance of
government is of greater utilitarian value than maintenance of the law.

Doctrine of Necessity Invoked

1. Pakistan, 1954: First use of the Doctrine of necessity

2. Grenada, 1985: Second use of the Doctrine of necessity

1. Pakistan, 1954: First use of the Doctrine of necessity:

On October 24, 1954 the Governor-General of Pakistan, Ghulam Mohammad, dissolved
the Constituent Assembly and appointed a new Council of Ministers on the grounds that
no longer represented the people of Pakistan. Stanley de Smith argues that the real reason
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for the dissolution was because Mohammad objected to the constitution which the
Assembly was about to adopt.

 The President of the Constituent Assembly, Maulvi Tamizuddin, appealed to the Chief

Court of Sind at Karachi to restrain the new Council of Ministers from implementing the
dissolution and to determine the validity of the appointment of the new Council
under Section 223-A of the constitution.
In response, members of the new Council of Ministers appealed to the court saying that it
had no jurisdiction to approve the request of the President to overturn the dissolution and
appointments.

 They argued that Section 223-A of the constitution had never been validly enacted into
the Constitution because it was never approved of by the Governor-General, and
therefore anything submitted under it was invalid. 

The Chief Court of Sind ruled in favour of President Tamizuddinand held that the
Governor-General's approval was not needed when the Constituent Assembly was acting
only as a Constituent Assembly and not as the Federal Legislature.
The Federation of Pakistan and the new Council of Ministers then appealed to the court,
the appeal was heard in March of 1955 (Federation of Pakistan v Maulvi Tamizuddin
Khan).

In the appeal hearing under Chief Justice Muhammad Munir, the court decided that the
Constituent Assembly functioned as the 'Legislature of the Domain' and that the
Governor-General's assent was necessary for all legislation to become law. Therefore, the
Chief Court of Sind had no jurisdiction to overturn the Governor General's dissolution
and it was held as valid.

The Court was referred to for an opinion. On May 16, 1955 it ruled:

1. The Governor General in certain circumstances had the power to dissolve the
Constituent Assembly.

2. The Governor-General has during the interim period the power 'under the common law
of civil or state necessity' of retrospectively validating the laws listed in the Schedule to
the Emergency Powers ordinance.

3. The new Assembly (formed under the Constituent Convention Order 1955) would be
valid and able to exerise all powers under the Indian Independence Act 1947.

In his verdict, Munir declared it was necessary to go beyond the constitution to what he

claimed was the Common Law, to general legal maxims, and to English historical
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precedent. He relied on Bracton's maxim, 'that which is otherwise not lawful is made
lawful by necessity', and the Roman law maxim urged by Jennings, 'the well-being of the
people is the supreme law.'

2. Grenada, 1985: Second use of the Doctrine of necessity:

In a 1985 judgment, the Chief Justice of the High Court of Grenada invoked the doctrine of

necessity to validate the legal existence of a court then trying for murder the persons who had
conducted a coup against former leader Maurice Bishop.
The court had been established under an unconstitutional "People's Law" following the
overthrow of the country's constitution, which had subsequently been restored. The defendants
argued that the court before which they were being tried had no legal existence under the
restored constitution, and they were therefore being deprived of their constitutional right to a trial
before a "Court established by law". The High Court acknowledged that the lower court "had
come into existence in an unconstitutional manner", but "the doctrine of necessity validated its
acts." On this basis, the murder trials were allowed to proceed.

Fruits of Justice Munir’s Doctrine of Necessity

Doctrine of Necessity = Might is Dependence of Judiciary

right
 Law shredded with might: MLR,  Judiciary becomes politicized.
MLO, LFO, PCO….
 Violation/Abuse of law trickles  Judiciary was dictated
down all the levels. decisions
 Abuse of autonomy of  Judge appointed/fired at will.
institution: ECP, AGP, FIA ….

Year Justice Munir Doctrine used by SC Violation of Destruction of

for validating dictatorship’s: Mattti- constitution/law judiciary
pao
1956 Molvi Tameezudin case throw out. Dissolution by Gen 3 years
Assembly dissolution validated. Iskandar Mirza
1958 Dasso case: Constitution abrogation Gen Ayub martial law 11 years
validated.
1972 Asama Jilani case: : Constitution Gen Yahya martial 3 years
abrogation validated. law
1977 Nusrat Bhutto case: Constitution Gen Zia martial law 11 years
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suspension validated.
2000 Zafar ali shah case: Overthrow Gen Muusharraf coup 9 years
validated. PCO-NRO matti-pao

1956
 Molvi Tameezuddin who was the speaker of the assembly which was dissolved by
General Iskandar Mirza.
 Molvi Tameezuddin was a Bengali and the case he filed in the high court brought him a
positive verdict in his favor.
 However, Justice Munir threw validated the dissolution of assembley and who condoned
the dissolution by Gen Iskandar Mirza on the altar of doctrine of necessity.
 This led to the musical chairs of prime ministers as General Iskandar Mirza (great great
grandson of the notorious Mir Jafar of Bengal) played havoc with the system for the next
three years.
 He ousted four prime ministers in 2 years.  With each ouster of a prime minister, General
Ayub Khan gathered more and more power till the time came for him to oust General
Iskandar Mirza.

General Iskandar Mirza consolidated the One-Unit program which led to severe unrest in
the Bengalis and created language riots. During his reign, one of the prime minister was
Suharwardy (another Bengali) who was ousted creating another cause of pique to the East
Pakistan.

1958
 Gen Ayub’s Martial Law was challenged in the courts.
 The famous Dosso Case which legitimized constitution abrogation again used the
notorious Justice Munir's doctrine of necessity.
 This led to the ushering in of 11 years of dictatorial reign.
 The tremendous costs of Genearal Aybu's Martial Law are detailed elsewhere and led to
the dismemberment of the country.

1972
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 Asma Jilani Case: Constitution Abrogation by General Yahya validated, again on the
altar of Doctrine of Necessity. 
 Gen Yahya’s Martial Law who presided over the secession of East Pakistan and the
surrender of 92000 troops in erstwhile Pakistan. 

1977
 Nusrat Bhutto Case: Constitution Suspension validated again using Justice Munir's
doctrine of necessity, which would eventually culminate in ZAB’s judicial murder that
can be termed as the lowest point in our constitutional history where the chief justices
would stoop so low on the whims and fancies of a general dictator. 
 Costs of Gen Zia’s Martial Law and dictatorship of 11 years

2000
 Zafar Ali Shah Case: Overthrow validated. PCO → NRO matti-pao
 Costs of Gen Musharraf’s Coup and dictatorship of 9 years.

Dasso Case
The state vs Dasso and others

(PLD 1958 SC 553)

Court: Supreme court of Pakistan

Present:
Chief Justice Mr. Muhammad Munir

Justice Mr. M. Shahabuddin

Justice Mr. A. R. Cornelius

Justice Mr. Amirudddin Ahmad

Introduction:
State v/s Dosso is a simple case of murder committed by a person named,Dosso in
Balochistan.He was convicted under the tribal system of justice by Loya Jirga as enumerated in
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FCR(frontier crimes regulation); but his relatives approached to the Lahore high court which
repealed the decision of Loya Jirga,later on, on the appeal of Federal Govt,Supreme court
reversed the decision of Lahore High court.The case got prominence,because it indirectly
questioned the legitimization of Martial law imposed by Iskandar Mirza on 7th oct,1958.

Background:
A murder took place in the Lora lai district of Balochistan by a person named as Dosso.He was
arrested and was handed over to the Council Of Elders(Loya Jirga).The Tribal authorities
charged him under FCR, 1901.The relatives of Dosso upon this filed a writ petition in Lahore
High court against the decision of Loya jirga.Lahore high court heared the case under the
constitution of 1956, and held its verdict in favour of Dosso.Lahore high court also declared FCR
as an unconstitutional.The Federal Govt filed appeal against this decision in SC of Pakistan.SC
decided the case in favour of the federal govt.

Main Events/Facts:

1) Arrest and Conviction of Dosso:

Dosso and other were convicted under Section 11 of FCR 1901, and handed over to Loya Jirga.
The Jirga convicted Dosso.

2) Petition in Lahore High court against FCR:

The relatives of Dosso filed a petition against the proceedings of council of elders regarding
Dosso case in Lahore High Court. They challenged the references and the convictions on the
grounds that the relevent provision of the FCR were void being repugnant in the " Equity before
Law" and the equal protection of Law" and the right to counsel embodied in Articles 5 and 7 of
the 1956 Constitution.

Decesion of Lahore High Court:

The High Court decided the case in favour of Dosso and declared FCR repugnant to 1956
constitution. Article 5 and 7 of which ensured the equality of all before the law. Thus Lahore
High Court decided the proceedings of council of elders as null and void under FCR, 1901.

Effect of Lahore High court:

The effects of this decision were that,after the declaration of FCR as repugnant to the
constitution;then the validity of those cases were questioned, which were decided under FCR
since long befor it was enacted, and especially since 1956 when the new constitution was
promulgated.
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Appeal in the Supreme Courtof Pakistan:

The Federal Government of Pakistan went into an appeal in SC against the verdict of the Lahore
High Court.The Supreme Court decided 13th october 1958 as the date for hearing the case. But
prior to that on october 7, 1958, a drastic change came in the political history of Pakistan;when
1st martial was Imposed in the country.

Promulgation of Martial Law:

On october 7th 1958 the President of Pakistan Iskandar Mirza declared Martial Law in the
country and made AYUB KHAN as Chief Martial Law Administrators(CMLA). the centeral and
provincial legislature were dissolved with the abrogation of the 1956 Constitution.

SOME TECHNICAL POINTS:

Followed by the imposition of Martial Law some technical points raised in dosso case
throughout the country.

a) if Supreme Court would upheld the decesion of Lahore High Court in Dosso case, it means
the 1956 Constitution was still in force as Lahore high Court decided the case in accordance with
Article 5 and & 7 of the 1956 constitution.

b) And if 1956 constitution was still enforce then what was the role of Martial law regulation i-e
Laws (continuance in Force ) Order 1958. In short it would have been a challenge to the Martial
Law administration.

MAIN POINTS/ASPECTS OF THE JUDGMENT:

1) LEGALISATION OF 1958 martial law

The judgment held that 1958 Martial law imposition is a kind of revolution(peaceful revolution)
which is not resisted or opposed by the common people;this clearly defines that the people are
happy with this change,thereafter this revolution or martial law is legal as long as it satisfies the
common people.

2) Recognition of Laws ( continuance in force ) order:

The Supreme Court held that the Laws ( c0ntinuance in Force ) order 1958 was the NEW
LEGAL ORDER and the validity of laws and the correctness in the judicial decisions would be
determined according to it.
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Conclusion
The use of the necessity doctrine to legitimize a coup d'etat or other revolutionary alteration of
the government is inappropriate. This application of the doctrine is incorrect for two
reasons.

First,
the assumption that the court will be able to influence the regime by using the doctrine in this
manner is not realistic.

Second, the court's action validates the new regime and gives it the appearance of
legitimacy.