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Doctrine of Necessity

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Maulvi Tamizuddin case – 1955
Federation of Pakistan v. Maulvi Tamizuddin Khan

Justice Munir. Father of Doctrine of Necessity

In 1954, Governor General Ghulam Muhammad dissolved the Constituent Assembly of Pakistan after dismissing Prime Minister Khawaja Nazimuddin who enjoyed the confidence of the dissolved constituent assembly. Maulvi Tamizuddin Khan, then President of the Constituent Assembly and a representative from East Bengal, challenged the Governor General’s actions in the Sindh High Court. That court declared the dissolution as ultra vires. The federal government appealed in the country’s apex Federal Court, which over decades has become in public eyes, the Supreme Court of the land and a trigger-happy partner in crime with each military dictator.
In this infamous case, the then Federal Court of Pakistan ruled in favour of the Governor General of Pakistan’s dismissal of the First Constituent Assembly of Pakistan. The court, by majority decision supported the dismissal on grounds of the “doctrine of necessity”. There was one dissenting opinion. The verdict was to become a long-term body blow to democracy in Pakistan. It was the trigger that eventually led to the break-up of Pakistan and emergence of Bangladesh on the global map. That fatal judgement was as a constitutional coup against the people by the very custodians of the constitution and guardians of the fundamental right of its citizens.
The court based its judgement on grounds that Pakistan was still a dominion and not a fully independent country. Therefore, “royal assent” can only be given by the Governor General. A lone dissenting opinion was given by Justice Alvin Robert Cornelius, who argued Pakistan was indeed an independent country within the Commonwealth. Going by the Justice Munir led bench’s ludicrous argument, we should not have celebrated independence in the earlier years. By the same benchmark, Pakistan wrongly celebrated its 76th Day of Independence in 2023. It should have been called the 69th Independence Day!
The verdict became a sort of “relay movement” for the future. The glowing torch of Doctrine of Necessity lit by Jus. Munir was passed on to almost all his successors, who gleefully carried it forward like athletes proudly run holding aloft the Olympic torch. While the latter is a run of honour, running with Jus. Munir’s torch has always been and will remain so, if applied in future, a “run of pride in disgrace”.
It paved the way for the future judiciary to not only support unconstitutional and undemocratic military coups, later judges climbed up higher on the ladder of judicial shame. They not only gave legal cover to military dictators, a couple of them like Jus. Iftikhar Chaudhry gave them the unconstitutional authority to amend the constitution, as and when they wished to do so.
This is how the continual downfall of the now globally rated “Adliya No 130” out of 139 started. A matter of national shame for the country and its people, but what a prosperous and richly rewarded life for all those superior court judges who followed the laid down path to permanent disgrace and condemnation in history recorded and preserved for all times to come..

Zahir Kaleem