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Doctrine .Ali

The Doctrine of Necessity was established in a 1954 Pakistani Supreme Court case that validated the Governor General's extra-constitutional dissolution of the national assembly. It cited an old legal maxim that what is otherwise unlawful can be made lawful by necessity. The doctrine was also used in Grenada in 1985 to allow a murder trial to continue despite being established by an extra-legal decree. The 1954 Pakistani case involved the Governor General dissolving the assembly over a dispute about the emerging constitution. The dissolution was challenged but ultimately upheld by the Supreme Court under the Doctrine of Necessity.

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198 views2 pages

Doctrine .Ali

The Doctrine of Necessity was established in a 1954 Pakistani Supreme Court case that validated the Governor General's extra-constitutional dissolution of the national assembly. It cited an old legal maxim that what is otherwise unlawful can be made lawful by necessity. The doctrine was also used in Grenada in 1985 to allow a murder trial to continue despite being established by an extra-legal decree. The 1954 Pakistani case involved the Governor General dissolving the assembly over a dispute about the emerging constitution. The dissolution was challenged but ultimately upheld by the Supreme Court under the Doctrine of Necessity.

Uploaded by

Ahmad Zeeshan
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Doctrine of Necessity

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.

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 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.
Dasso Case
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
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.

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

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

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.

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.

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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