After technical objections regarding the formation of the Supreme Court Bench and whether judges could be tried for contempt of court, the counsel for Justice (retd) Abdul Hameed Dogar has taken the stand that his client had done what the judiciary had been doing for the last 50 years. He has taken recourse to the hackneyed argument that the foremost duty of the judge is to save the judicial system advanced, as was done for half a century by a generation of judges who validated successive military rules. In fact, the past actions of the judiciary in Pakistan, since CJ Muhammad Munir advanced the Doctrine of Necessity to validate the dismissal of the Constituent Assembly in 1954 to the validation of Musharrafs coup in 2000, constitute a dark era in its history. The verdict by Justice Munir struck a serious blow to the fledgling democratic institutions in Pakistan. By helping the military rulers enslave the people, the judges accepted limits on their own authority thus agreeing to turn into pliant tools in their hands. Subsequently, among the many dark deeds committed by the judiciary was the judicial murder of ZAB.
Under Ayub and Yahya, the judiciary stood away from military rulers though it did little to confront them or save the Constitution from abrogation at their hands. Zia finally rendered the judiciary ineffective under the 1981 PCO. The judiciary once again submitted to Musharraf when on May 12, 2000, Pakistan’s 12-member SC unanimously validated the October 1999 coup and granted Musharraf executive and legislative authority for three years.
The first glimmer of light in the history of judiciary was the decision by CJ Iftikhar Chaudhry and eight other judges on Nov 3, 2007 to refuse to endorse the Musharraf PCO, declaring it illegal and barring all judges of the Supreme Court and High Court from taking an oath under it. This was the first example of a CJ and a large number of judges resisting a military ruler in uniform. It was also for the first time that practically the entire legal community and civil society joined hands to fight for the independence of judiciary. The glorious chapter added to the judiciarys history requires the burial of the Doctrine of Necessity forever.