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Doctrine of the Law of Necessity: Political Repercussions of Judicial Decisions (A Case Study of Pakistan1954-2007)

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Doctrine of the Law of Necessity: Political Repercussions of Judicial Decisions (A Case Study of Pakistan1954-2007) DOCTRINE OF THE LAW OF NECESSITY: POLITICAL REPERCUSSIONS OF JUDICIAL DECISIONS (A CASE STUDY OF PAKISTAN1954-2007) A Ph. D THESIS PRESENTED TO THE FACULTY OF POLITICAL SCIENCE FOR THE DEGREE OF DOCTORATE By ZAHID MAHMOOD SUPERVISOR: DR. SUMMER SULTANA UNIVERSITY OF KARACHI, KARACHI 2015 DECLARATION I, Zahid Mahmood s/o Abdul Jabbar, do hereby declare that no part of the work presented by me has been plagiarized from anywhere. Proper references are cited wherever necessary. I understand that the University reserves the right to cancel the degree if any of the above declaration is proved false before or even after the award of the award of degree Name of Candidate : Zahid Mahmood Title : Doctrine of the Law of Necessity: Political Repercussions of Judicial Decisions (A Case Study of Pakistan 1954-2007) Degree : Ph. D Department/Subject : Political Science Date : 2015 TABLE OF CONTENTS DECLARATION ............................................................................................................ i ACKNOWLEDGMENTS .............................................................................................. i URDU KHULASA ...................................................... Error! Bookmark not defined. ABSTRACT .................................................................................................................. vi CHAPTER 1 .................................................................................................................. 1 INTRODUCTION TO THE TOPIC .............................................................................. 1 1.1 Issues addressed ....................................................................................................... 8 1.2 Importance/Contribution of the research ............................................................... 10 1.3 Relation with existing Literature ........................................................................... 11 1.5 Research Methodology .......................................................................................... 12 CHAPTER 2 ................................................................................................................ 13 CONCEPTUAL AND THEORETICAL FRAMEWORK .......................................... 13 2.1 What is Necessity? ................................................................................................. 13 2.2 Islam and the Law of Necessity ............................................................................. 14 SURAH AL-INAAM PART VI VERSE NO. 119 ...................................................... 15 SURAH AL-NEHAL PART XVI VERSE NO. 115 ................................................... 15 SURAH AL-BUQRA PART II VERSE NO. 173 ....................................................... 15 SURAH AL-MAIDA PART V VERSE NO. 4 ........................................................... 15 2.3 Formulation of Juristic Principles .......................................................................... 16 2.3.1 Limitations to the Concept of Necessity ............................................................. 17 2.4 Application of the Concept of Necessity in English Law ...................................... 17 2.5 Evolution of the Concept of Necessity .................................................................. 19 2.6 Individual Necessity and Collectiveness ............................................................... 23 2.7 Hans Kelsen on the Subject of Doctrine of Necessity ........................................... 27 2.8 Conclusion ............................................................................................................. 31 CHAPTER 3 ................................................................................................................ 32 LAW OF NECESSITY AND JUSTIFICATION OF MARTIAL LAWS IN PAKISTAN .................................................................................................................. 32 3.1 Military Intervention in Different Parts of the World ............................................ 34 3.2 Military intervention in Pakistan and Kelsen‟s Theory ......................................... 38 3.3 First Martial Law 7th October, 1958 to 24th March, 1969 ..................................... 41 3.4 Second Martial Law 25th March, 1969 to 20th April, 1972 .................................... 44 3.5 Third Martial Law 5th July, 1977 to 31st December, 1985 ..................................... 50 3.6 Fourth Martial Law Oct, 1999 to 2008 .................................................................. 59 3.7 Joint Collaboration of Civil-Military Rule 2002-2007 .......................................... 62 3.8 Conclusion ............................................................................................................. 64 CHAPTER 4 ................................................................................................................ 65 MAJOR DEVELOPMENTS IN POLITICAL LANDSCAPE & REPERCUSSIONS OF DOCTRINE OF NECESSITY (1947-1969) ......................................................... 65 4.1 Political Developments during the Formative Years 1947-1958 ........................... 71 4.2 Political Developments during the Ayub Era 1958-1969 ...................................... 81 4.3 Conclusion ............................................................................................................. 91 CHAPTER 5 ................................................................................................................ 92 POLITICAL MANIFESTATIONS OF LAW OF NECESSITY (1969-1988) ........... 92 5.1 Power imbroglio between Bhutto and Mujeeb .................................................... 100 5.2 Towards Dismemberment .................................................................................... 104 5.3 Constitutional Developments ............................................................................... 114 5.4 Zulfiqar Ali Bhutto and the Remaining Pakistan ................................................. 118 5.6 Bhutto Regime faces a Political Turmoil ............................................................. 129 5.6 Operation Fair Play of General Zia and Eleven Years ........................................ 134 5.7 General Zia comes to Power ................................................................................ 139 5.8 Conclusion ........................................................................................................... 149 CHAPTER 6 .............................................................................................................. 151 MAJOR POLITICAL DEVELOPMENTS AND LAW OF NECESSITY ............... 151 (1988-2007)................................................................................................................ 151 6.1 Mian Nawaz Sharif Clinches Power 1990-1993 .................................................. 157 6.2 Benazir regains Power 1993-1996 ....................................................................... 162 6.3 Nawaz Sharif re-enters Powers Echelons 1997-1999 .......................................... 164 6.4 Military era of General Musharraf 1999-2008 ..................................................... 178 6.5 Musharraf Baptizes his Dictatorship .................................................................... 181 6.6 Conclusion ........................................................................................................... 185 CHAPTER 7 .............................................................................................................. 186 ANALYSIS OF JUDICIAL DECISIONS BY THE SUPERIOR COURTS ............ 186 (1954-2007)................................................................................................................ 186 7.1 Chief Justice Munir introduces Doctrine of Necessity ........................................ 188 7.2 Chief Justice Munir and his Justifications for use of Law of Necessity .............. 197 7.3 Chief Justice Munir discusses Ratio Decidendi ................................................... 199 7.4 Law of Necessity and its Application in Pakistan ............................................... 211 (i) Maulvi Tameez-ud-Din Khan Case ...................................................................... 211 (ii) Usif Patel and others vs. The Crown.................................................................... 214 (iii) Reference by his Excellency the Governor General ........................................... 215 (iv) The State vs. Dosso & Others ............................................................................. 219 (V) Miss Asima Jillani vs. The Government of Punjab ............................................. 220 Supreme Court Passes Verdict against the Doctrine of Necessity ............................. 221 (VI) Begum Nusrat Bhutto vs. Chief of the Army Staff and the Federation of Pakistan .................................................................................................................................... 223 Arguments of Mr. Yahya Bakhtiar (Counsel for the PPP) ........................................ 225 Arguments of Mr. A.K. Brohi (Counsel for the Federation of Pakistan) .................. 225 Arguments of Mr. Sharif-ud-Din Peerzada (Attorney General of Pakistan) ............. 227 Supreme Court renders Judgment .............................................................................. 227 (VII) Syed Zafar Ali Shah and others Vs. General Pervez Musharraf, Chief Executive of Pakistan and
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