From: hyder@cs.utexas.edu (Syed Irfan Hyder)
Newsgroups: soc.culture.pakistan
Subject: Justice Munir's vicious judgement: "Nazriya-e-zaruurat"
Date: 13 Apr 1992 18:00:23 -0500
Organization: U Texas Dept of Computer Sciences, Austin TX
Distribution: world
NNTP-Posting-Host: pageboy.cs.utexas.edu

Some how it seems that Justice Munir is becoming an authority
on Pakistan and issues relating to Pakistan. In fact, his
record as Chief Justice of Pakistan is so dismal, that he
must be made a lesson for all others not to ever copy
him. His only one judgement is enough to castigate him
to the "hall of notriety" of the Judges. I don't know
what was his objective, but his decision about the
"Nazriya-e-zaruurat" which allowed all later Martial laws
in Pakistan a notorious legitimacy, is a classic case of
short-sightedness. A decision which is a prime example
of what a "judge" should never do:

Here are the excrepts of the repurcussions of that fateful
decision:

  Netters must note that the
  whole legacy of Martial Laws (Ayub, Yahya, Bhutto, Zia) and
  summararily dismissal of governments (Suharwardi, Junejo, and BB), 
  and even the fall of East Pakistan,
  rests on the precedence of Justice Munir's notorious decision.
  
  It was 1956 (?), it was only 6 months after Suharwardi (a Bengali) has
  assumed the position of Prime-Minister. Only a day earlier,
  the PM had successfully gotten the budget passed (in parliamentary
  traditions considered as a virtual vote-of confidence). 
  Then the next morning, out of the
  blue, comes the directive of Iskander Mirza that the PM be
  removed. When the speaker of the dissolved assembly (yet another
  Bengali) submitted the writ petition in Lahore High Court. The
  honourable Judge of the Lahore High Court, judged the decision
  to be extra-constitutional.
  
  When Iskander Mirza appealed to the Supreme Court, against LHCs
  unfavorable decision, there we
  saw the worst thing that could have happened to the new nation 
  and a nascent constitution.
  The Chief Justice Munir, yes, the same justice you are quoting
  as authority, ruled that Iskander Mirza arbitrary action was
  OK and thereby overruling LHC. The concept under which the
  decision was made is called the "rule of necessity". the 
  same concept which is behind the failure of 
  all subsequent litigations against the Martial laws and summary
  dismissals. Every arbitrary action of a dictator is done
  by hiding behind this very same precedent of "rule of necessity".
  
  It is the same decision which then sealed the democratic
  tradition of our country for the next 30 years (till the
  overturning of Zia's dismissal, but only after his death).
  Bengalis in their long list of grieviences against West
  Pakistan always start with this arbitrary dismissal of
  the Bengali Prime Minister, and overturning of the appeal
  by Munir of the Bengali speaker, Maulvi Tameezuddin
  of the assembly.
  ( Remember that Muslim league
  was formed by a Bengali in 1906 (Nawab Salimullah), and
  the Pakistan Resolution was forwarded by a Bengali (Maulvi
  Fazlul Haq,) in 1940)
  
  
  I also remeber a three part series on PBS on the twohundred
  years of US constitution aired a few years ago.
  The presenter, Peter Jennings,
  related a very similar incident in the Judicio-legal-constitutional
  history of US constitution.
  
  Some 10-20 years after the constitution was promulgated (in late 
  eighteenth century), a governer was criticized for his actions in
  Philidelphia(?) by a newspaper. The editor was imprisoned or
  stopped from publication. Whatever, the petition was made in
  the court against the extra-constitutional action of the Governor.
  The court rejected the Governor's decision, who then had to
  leave his office. This episode is considered to be the
  most critical juncture of the life of the nascent US constitution.
  Had it been otherwise, who knows whether we would have been
  here or not, debating the whole issue!!!!!!!!!!!!!!