Buried but Not Forgotten: A Critical Case Analysis of the Doctrine of Necessity in Pakistan’s Constitutional Order

Of all the concepts of comparative constitutional law, the doctrine of necessity is one of those which had a particularly turbulent history. Its origins can be traced back to the medieval statement attributed to Henry de Bracton who stated that [1]“that which is otherwise not lawful is made lawful by necessity”. The concept was always supposed to be an extraordinary instrument of government, an emergency mechanism bridging the gap between stringent laws and the necessities of a crisis. Its most basic interpretation is similar to the exception known in criminal law as self-defense narrow in its scope and duration and meant to be applied in extraordinary situations only.

However, the historical development of Pakistan’s constitution shows the opposite trend. Instead of a temporary measure meant to preserve the state and its constitutional order, it eventually became the very tool through which the state and its constitution were brought down. From the 1954 dissolution of the Constituent Assembly to the military coups of 1958, 1977, and 1999 Pakistan’s supreme court invoked necessity not to preserve the constitutional order, but to interrupt it.

The conclusion is inevitable and forms a paradoxical dilemma which has to be addressed by anyone trying to understand Pakistani constitutionalism. Doctrine which was supposed to save the constitutional order became the very means through which this order was to be ended. This article suggests that in Pakistani practice the doctrine of necessity was more an extraordinary emergency management technique than a license to seize powers.

The doctrinal journey begins with the death of Pakistan’s first Constituent Assembly. After the assassination of Liaquat Ali Khan and years of internal deadlock, the Assembly was on the verge of finalizing a constitution that would have curtailed the discretionary powers of the Governor-General including his power to dismiss an elected government. Sensing this threat to his authority, Governor-General Ghulam Muhammad dissolved the Assembly in October [2]1954, prompting its president, Moulvi Tamizuddin Khan, to challenge the dissolution before the Sindh High Court. The High Court sided with Tamizuddin Khan, relying on the Privy Council’s reasoning in Musgrave v. Pulido that a colonial-era executive cannot claim the sweeping prerogatives of the Crown. On appeal, however, Chief Justice Muhammad Munir engineered a more favorable bench reportedly arranging for a dissenting judge to be reassigned as a provincial governor and the Federal Court reversed the High Court, invalidating not only the impugned provision but forty-five other laws passed by the Assembly. When the Governor-General attempted to validate these laws retroactively, the Federal Court in [3]Usif Patel v The Crown rejected that maneuver, forcing a further Reference to the Court. It was here, in the Reference case, that Munir CJ first invoked the common law doctrine of civil necessity, drawing on Lord Mansfield’s eighteenth-century charge to the jury in the Stratton case, to hold that the Governor-General possessed an inherent power to validate the laws under the stress of state necessity.

Four years later, the doctrine acquired a more explicitly theoretical foundation. In State v. Dosso (1958), decided within days of President Iskander Mirza’s abrogation of the 1956 Constitution and General Ayub Khan’s imposition of martial law, Munir CJ turned to Hans Kelsen’s positivist theory that a successful revolution constitutes a “law-creating fact.” On this reasoning, because the new order appeared efficacious, it was treated as legally valid regardless of its constitutional legitimacy a determination made, remarkably, before the new regime had any real opportunity to demonstrate efficacy at all, and one whose fragility was exposed almost immediately when Mirza himself was ousted by Ayub Khan the very day after the judgment was delivered.

It took until 1972, in Asma Jilani v. Government of Punjab, for the Supreme Court to break from this trajectory. Chief Justice Hamoodur Rahman dismantled Munir’s reliance on Kelsen, observing that Kelsen’s theory was a descriptive account of legal systems rather than a normative rule authorising judges to legitimize usurpers, and that “it was, by no means, his purpose to lay down any rule of law to the effect that every person who was successful in grabbing power could claim to have become a law creating agency.” Drawing on Lord Pearce’s dissent in the Rhodesian case of [4]Madzimbamuto v. Lardner-Burke, the Court articulated a more disciplined framework: acts of a usurping regime could be condoned not legitimized but only where they served the ordinary, orderly administration of the state, did not entrench the usurper’s power, and did not impair citizens’ rights beyond what the public welfare required. Yaqub Ali J went further still, declaring that no valid law could emerge from the “foul breath” of a regime founded on treason against the constitutional order.

Yet this doctrinal correction proved short-lived. When General Zia-ul-Haq imposed martial law in 1977, the Supreme Court in Begum Nusrat Bhutto v. Chief of Army Staff revived necessity, this time framing the intervention as a temporary, limited deviation rather than a wholesale rupture of the legal order even though the “temporary” arrangement endured for nearly a decade. The pattern repeated itself in 2000, when a twelve-member bench in Zafar Ali Shah v. General Pervez Musharraf validated Musharraf’s coup on grounds of state necessity, empowering him to amend the Constitution so long as certain “salient features” remained untouched. Five years later, in Pakistan Lawyers’ Forum V. Federation of Pakistan, the Court further entrenched executive supremacy by upholding legislation permitting Musharraf to hold both the presidency and the position of Army Chief simultaneously, reasoning that Pakistan had evolved its own political system distinct from the Westminster model. It was only after Musharraf’s second, more overtly authoritarian emergency in 2007 and the lawyers’ movement it provoked  that the judiciary, restored under Chief Justice Iftikhar Chaudhry, began to definitively repudiate the doctrine, a repudiation later echoed in the 2012 Gilani case describing necessity as a [5]“malignant doctrine” buried through the struggle of the Pakistani people.

It would take until 1972 in the case of Asma Jilani v. Government of Punjab, for the Supreme Court to deviate from this path. Chief Justice Hamoodur Rahman discredited Munir’s arguments relying on Kelsen, and pointing out that “Kelsen never intended to establish any rule of law that an act of usurpation could become a legitimate law creating authority”. Using arguments put forward by [6]Lord Pearce in his dissent in the Rhodesian case of Madzimbamuto v. Lardner-Burke, the Court adopted a more rigorous position acts of the usurping government can be condoned and not legitimized where such acts facilitate the regular administration of the state and do not consolidate the usurper’s power, nor do they affect the rights of the citizens more than is necessary for the public good. Yaqub Ali J took it one step further and pointed out that it would be impossible for any valid law to emerge from the “foul breath” of the government established through treason.

However, this doctrinal development did not last long. When General Zia-ul-Haq imposed martial law in 1977, the Supreme Court of Pakistan in Begum Nusrat Bhutto v. Chief of Army Staff brought back the necessity doctrine – this time presenting the imposition of martial law as a temporary and limited deviation from the rule of law, although this “temporary” arrangement would continue for close to a decade. Again, the trend was repeated in 2000 when in a judgment of a twelve-member bench in the case of [7]Zafar Ali Shah v. General Pervez Musharraf the Court ruled the Musharraf coup valid because of state necessity, giving Musharraf the powers to amend the Constitution provided that certain “salient features” of the Constitution were not touched. In 2005, in [8]Pakistan Lawyers’ Forum V. Federation of Pakistan the Supreme Court further legitimized executive supremacy by supporting a piece of legislation that allowed Musharraf to occupy both posts of President of Pakistan and that of the Army Chief at once, explaining that Pakistan had its own political system which was different from the Westminster model. It would take another round of the emergency imposed in 2007 by Musharraf which prompted a lawyer’s movement – and the Supreme Court restored to its rightful place under the restored Chief Justice Iftikhar Chaudhry, who finally rejected the doctrine the same doctrine being described in 2012 Gilani case as a “malignant doctrine”.

There are two reasons why it can be claimed that the idea of necessity in Pakistan functioned mainly as a means of usurpation rather than as a true mechanism for dealing with crises. The first of these is that the doctrine was brought in after, not before, the takeover of power and usually within a few days of the relevant coup taking place a sequence of events which casts serious doubt on the idea that the judgement was based on an impartial legal evaluation. In the Dosso case, the Court dealt with the ‘effectiveness’ of Ayub Khan’s regime just twenty days after martial law had been declared, before it was even possible to assess whether that effectiveness really existed; the regime’s own instability had in fact become evident within twenty-four hours of the decision being made. This kind of timing indicates that the judiciary was not genuinely assessing the question of necessity as a separate legal issue but was instead justifying in a retrospective way the decisions which had already been taken by the military and executive branches. The second point is that the doctrine always went far beyond the level of authority that a strict interpretation of emergency law would allow. In the Zafar Ali Shah case, the Court did not simply allow Musharraf to govern on a temporary basis; it gave him the power to amend the Constitution itself, a power which is normally kept for the legislature when it acts by means of a supermajority. Likewise, in the Begum Nusrat Bhutto case the Court gave the authority to suspend fundamental rights under provisions which, by their own terms, only applied to proclamations made by the President and not by a Chief Martial Law Administrator. In each of these cases, necessity was not acting as a protection of the constitutional order but rather as a weapon that cut through the order’s most fundamental protections.

There are two counter-arguments that should be taken seriously. First the idea of necessity is not something that only exists in Pakistan. It is also found in law and in Islamic law. The idea that difficult situations can allow people to break normal rules is shown in the way[9] Imam Abu Hanifa used istihsan which means using good judgment. It is also seen in the time when Caliph Umar stopped punishing theft during a time when there was not enough food. Looking at it like this the idea of necessity still being used in Pakistan might not mean that the courts are just following orders. It might mean that they are trying, not perfectly to keep the law going during times when the system is not working properly. This kind of situation is what Lord Mansfield called ” necessity,” where special actions are allowed to protect society from falling apart. Second someone could say that the courts had few choices in some of these cases. Munir, the Chief Justice later said that deciding against the Governor-General in 1954 could have led to problems and even fighting. Courts that were under rule had to deal with real problems. The judge’s jobs and even their safety were, in the hands of the government. This was clearly shown in 2007, when judges who disagreed were taken out of their positions and kept in custody. These courts may have been facing limits not just being part of the problem.

Weighing these positions, the arguments in favor of the thesis are considerably stronger, although the counter-arguments usefully complicate a purely condemnatory reading. The comparative religious and/or common-law pedigree of necessity does establish that the concept is not illegitimate; the problem lies squarely in its application. Hamoodur Rahman CJ’s distinction in Asma Jilani between “condonation” and “legitimization” is the crucial analytical fulcrum here: that necessity, properly restricted, may excuse specific administrative acts of a de facto authority for the sake of continuity, but it cannot confer original constitutional legitimacy on the authority itself. Munir CJ’s error and the error repeated in Begum Nusrat Bhutto and Zafar Ali Shah was to collapse this distinction, treating the doctrine as a source of affirmative constituent power. As for the argument from institutional constraint, it carries genuine force in explaining the judicial behavior but does little to justify the doctrine’s substantive scope. A court threatened with unenforceability might reasonably decline to confront a regime directly; that pragmatic caution does not require as the Zafar Ali Shah Court did affirmatively granting a usurper the power to rewrite the Constitution. The gap between prudent restraint and active validation is where the doctrine was time and again stretched beyond any defensible limit. What emerges from this analysis is that the fault lies less with necessity as a jurisprudential category than with a willing judiciary to conflate the survival of the state with the survival of whichever individual currently controlled its armed forces.

The doctrine of necessity in Pakistan is a particularly revealing case-study in the way that a legal tool for the most limited of emergencies can be utilised in order to formulate a general license for extra-constitutional rule, when the judiciary lacks the security or will to resist such influence. From Munir CJ’s manipulation of the bench in the Tamizuddin Khan litigation, through the Kelsenian arguments of Dosso, and the necessity findings in Begum Nusrat Bhutto and Zafar Ali Shah, the trend is clear; each time the necessity was used not as a restriction on extra-constitutional power, but as a justification of its use. The brief break in the pattern in Asma Jilani, and the more enduring repudiation of it after the lawyers’ movement of 2007-2009, demonstrates how the hold of necessity on the Pakistani jurisprudence was never inevitable but habitual. The judiciary’s assurance that necessity is now “buried” should be taken with a degree of caution rather than celebration. The basis of the logic of necessity, which allows for the possibility of courts succumbing to a pragmatic desire to overcome a crisis in institutional relations by accepting the expedience of extra-constitutional interference, has not been removed from the system by the removal of this series of cases. What has changed, or rather what is now more important, is the environment in which this potential for pragmatic accommodation exists; the conditions necessary for it to be a viable option for successive Pakistani governments, its military and its judiciary, need to be neutralized if it is to be consigned to permanence. The doctrine of necessity doesn’t create constitutional crises, only a mechanism for the resolution of them, and its perpetual retirement depends not on a particular court-case, but on a greater willingness by Pakistan’s political, military and judicial actors to deal with disputes within the framework of the system which they are sworn to uphold.

Reference(S):

1. Bracton, H. de. (1968). Bracton on the laws and customs of England (S. E. Thorne, Trans.). Harvard University Press; Selden Society. (Original work written c. 1250s)
2. Federation of Pakistan v. Maulvi Tamizuddin Khan, PLD 1955 FC 240.
3. Usif Patel and 2 Others v. The Crown, PLD 1955 FC 387.
4. State v. Dosso, PLD 1958 SC 533.
5. Asma Jilani v. Government of Punjab, PLD 1972 SC 139.
6. Madzimbamuto v. Lardner-Burke [1969] 1 AC 645.
7. Begum Nusrat Bhutto v. Chief of Army Staff, PLD 1977 SC 657.
8. Syed Zafar Ali Shah v. General Pervez Musharraf, PLD 2000 SC 869.
9. Pakistan Lawyers Forum V. Federation of Pakistan, PLD 2005 SC 719.
10. Iqbal, N. (2012, March 6). Doctrine of necessity buried, says SC. Dawn. https://www.dawn.com/news/700536/doctrine-of-necessity-buried-says-sc
11. Khan, H. (2009). Constitutional and political history of Pakistan. Oxford University Press.
12. Hamid, A. (2007). The judiciary, the legislature, and the executive: An analysis of Pakistan’s constitutional evolution. Pakistan Horizon, 60(3), 45–68.
13. Munir, M. (1980). From Jinnah to Zia. Vanguard Books.
14. Al-Sarakhsi, M. A. (1993). Al-Mabsoot (Vol. 24). Dar al-Ma’rifah.
15. Asad, T. (2003). Formations of the secular: Christianity, Islam, modernity. Stanford University Press.
16. Weiss, A. M. (1991). Walls within walls: Life cycles of working-class families in Lahore. Westview Press.
17. Supreme Court of Pakistan. (2012). Suo Moto Case No. 4 of 2010 etc. (Contempt proceedings against Syed Yousaf Raza Gilani). PLD 2012 SC 553.

[1] Bracton, H. de. (1968). Bracton on the laws and customs of England (S. E. Thorne, Trans.). Harvard University Press; Selden Society. (Original work written c. 1250s)

[2] Federation of Pakistan v. Maulvi Tamizuddin Khan, PLD 1955 FC 240 (1955).

[3] Usif Patel and 2 Others v. The Crown, PLD 1955 FC 387 (FC 1955).

[4] Madzimbamuto v. Lardner-Burke, [1969] 1 AC 645 (PC).

[5] Nasir Iqbal, “Doctrine of Necessity Buried, Says SC,” Dawn, March 6, 2012, https://www.dawn.com/news/700536/doctrine-of-necessity-buried-says-sc.

[6] Wikipedia contributors, “Madzimbamuto v. Lardner-Burke,” Wikipedia, The Free Encyclopedia, last modified [or accessed September 6, 2026], https://en.wikipedia.org/wiki/Madzimbamuto_v_Lardner-Burke.

[7] Syed Zafar Ali Shah v. General Pervez Musharraf, PLD 2000 SC 869 (SC 2000).

[8] Pakistan Lawyers Forum V. Federation of Pakistan, PLD 2005 SC 719 (SC 2005).

[9] Muhammad ibn Ahmad al-Sarakhsi, Al-Mabsoot, vol. 24 (Beirut: Dar al-Ma’rifah, 1993), 73.