Need is truly the mother of invention.
In this case it was the invention of the "Doctrine of State Necessity".
The term Doctrine of Necessity is used to describe the legal basis for a controversial 1954 judgment in which Pakistani Chief Justice Muhammad Munir validated the extra-constitutional use of emergency powers by Governor General, Ghulam Mohammad. In his judgment, the Chief Justice cited Bracton’s maxim, ‘that which is otherwise not lawful is made lawful by necessity’, thereby providing the label that would come to be attached to the judgment and the doctrine that it was establishing.
Contrary to popular belief, this nonsense is not a legal doctrine but rather a political doctrine. In order to justify, legitimize and validate the dismissal of Prime Minister Khawaja Nazimuddin’s government by Governor General Ghulam Mohammad in 1954, Chief Justice Mohammad Munir created the framework of the Doctrine of State Necessity. It was at this point, that the ruling of the Chief Court, to be later renamed as the Supreme Court of Pakistan, allowed the proverbial camel to stick his head into the tent.
Maulvi Tamizuddin Khan created history when the Constituent Assembly was dismissed by Governor General Ghulam Mohammad. Tamizuddin challenged the dismissal in the court. D. N. Pritt represented Maulvi Tamizuddin Khan. Ijaz Batalvi used to work in Pritt’s chambers in London after getting his silk from Lincoln’s Inn in 1953. He accompanied Pritt and supported him in the arguments of the case. Pritt won the case at the Sindh Court but, but when the state went in appeal, Tamizuddin ran out of money and could no longer pay Pritt’s fee. Pritt offered to waive his fee but Maulvi Tamizuddin couldn’t even pay his boarding and lodging during the appeal hearing. The Federal Court under Justice Muhammad Munir upheld the dismissal. Justice A. R. Cornelius was the sole dissenting judge in the landmark judgment handed down by the Federal Court in the Maulvi Tamizuddin case. That judgment altered the course of politics in Pakistan forever and sealed the fate of democracy.
After this ruling in 1954, whenever elected governments are overthown by the act of martial law, extraconstitutional actions of the armed forces are legitimized by the judiciary through the Doctrine of State Necessity. It is a doctrine that is based on the idea that it is legally justifiable to abandon the constitution in order to "save" the country. These extraconstitutional actions may include suppression of basic human rights, illegal arrests and detentions as well as torture, abductions, forced disappearances, denial of press freedom, the right of assembly and many other such acts. Other actions undertaken by a military regime to improve the "well being" of the nation still do not justify the fact that the establishment is standing on an edifice that has abgrogated (legal terms such as abeyance are for naught) the constitution of the country and disregards fundamental rights of citizens as a mere nuisance. The constitution of a country is not a buffet where you can pick and choose which articles and clauses can simply be held in abeyance for an indefinite period of time or for that matter any period of time.
Under the 1973 Constitution of Pakistan, the Members Of The Armed Forces take the following oath:
[Article 244] In the name of Allah, the most Beneficent, the most Merciful. I, ____________, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. May Allah Almighty help and guide me (A’meen).
A martial law fundamentally constitutes an act of treason that is committed by every officer and soldier of the armed forces who knowingly become party to this act.