One man, Chief Justice Mohammad Munir, can be easily identifiable as the slayer of constitutionalism and author of “legalised illegality.” He gave carte blanche to three dictators. Take care of the judges who imported and quoted the tyrannical vulgarity of Braxton’s maxim and the Roman dictum. He did that!
This is the story of beauty and the beast, beauty being Maulvi Tamizuddin Khan and the beast Chief Justice Mohammad Munir.
Martial law is not envisioned by the constitution in Pakistan. Chief Justice Mohammad Munir was the man who raised the doctrine of necessity, legalising the termination of the first Constituent Assembly of Pakistan. The assembly was dissolved on October 24, 1954, by Governor General Ghulam Muhammad, a graduate of Aligarh Muslim University.
Munir has been extensively censured for authorising the disbanding; behind this disbanding were the then unelectable Pakistani politicians like today, who had called for its dissolution. Paradoxically the forbidding supremacies of dictators like Ghulam Mohammad, Iskander Mirza, Ayub, Yahya, Zia, Musharraf leading to the perennial bereavement of democracy in Pakistan unswervingly points to the helping hand, the highest judiciary.
Our superior courts have continuously authenticated it and held that because the new government is constantly in a flux and therefore can be terminated by the extremes of inevitability. In 1955 the first time this malevolent criminal doctrine was presented as the disguised saviour of people in the Maulvi Tamizuddin case on March 21, 1955, when the Federal Court led by Munir endorsed the disbanding of a whole assembly on the orders of sick disabled Governor-General Ghulam Mohammad. Chief Justice Mohammad Munir carved that “necessity knows no law” and expounded the Roman dictum that ultimately “the well-being of the people is the supreme law.” The only Judge who dissented from his opinion was Justice Cornelius.
Chief Justice Mohammad Munir overruling the decision in Maulvi Tamizuddin Khan (Petitioner) v Federation of Pakistan (Respondent No.1) & Others (Respondents) 1954 SHC 81 (https://pakistanhorizon.files.wordpress.com/…/tamizuddin-kh… ) is an example of tyranny of superior judges, the decision that was overruled was a momentous ruling which set a great standard for perpetuation of the rule of law. I wish it was not overruled by the slayer of the constitution it signifies what could have been a much happier future. Instead of constitutionalism, he fetched in tyrannical vulgarity by importing Braxton’s maxim and Roman dictum that ultimately “the well-being of the people is the supreme law.”
He contended that the axiom of necessity was backed by such laws as Braxton’s maxim, “that which is otherwise not lawful is made lawful by necessity.” Munir used this constitutional vulgarity to indemnify Governor-General Ghulam Mohammad’s high-handed act of sacking the Constituent Assembly led by Tamizuddin Khan but his bequeathed constitutional blasphemy returned with a vengeance for a fresh rendezvous with the nation in 1958 when Ayub Khan enforced martial law and took over the government rescinding the 1956 Constitution.
His full concept of ‘necessity’ came to the fore on October 27, 1958, in the State vs Dosso case in which Munir authenticated the military coups of Iskander Mirza and Ayub Khan, declaring “a successful coup d’etat is an internally recognised legal method of changing a constitution.” He legalised that a single military man could walk in and undermine the will of the people — pronounced in Munir’s decision as a “legalised illegality”. His ‘doctrine of necessity’ judgement regrettably in 1978 was the foundation to sanction the military seizure of General Ziaul Haq. In 2000, it raised its dreadful skull extenuating General Pervez Musharraf’s overthrow of the civilian structure.