Rebirth of doctrine of necessity: Emergency and PCO validated

* SC says govt hampered by activist members of judiciary
* Court tells president to end emergency as soon as possible, hold fair polls

By Masood Rehman

ISLAMABAD: The Supreme Court (SC) validated the proclamation of emergency and Provisional Constitutional Order (PCO) on Friday under the “doctrine of necessity”.

The court held that when the constitution provided no remedy or satisfactory solution to an issue threatening national security, the doctrine could be invoked.

Announcing its three-page verdict on the petitions challenging emergency rule and PCO, the seven-member bench headed by Chief Justice of Pakistan Abdul Hameed Dogar unanimously decreed, “Sufficient corroborative material produced by the respondents justifies taking extra-constitutional measures by the chief of army staff and the president.”

Judicial activism: The court said terror attacks, suicide bombings and kidnappings had rendered the situation in Pakistan very unstable, but that the government had been hampered by activist members of the judiciary. The court also said that the judges who had not taken oath under the Oath of Office (Judges) Order of 2007, had ceased to hold their offices and their cases cannot be re-opened.

‘End emergency rule’: The court also told the president and army chief to end emergency rule as soon as possible, adding that the SC may, at any stage, re-examine the continuation of the proclamation of emergency if the circumstances so warrant.

The court directed the president, the government and the Election Commission to ensure fair, free and transparent elections. It held that the chief justices and judges of the superior courts were subject to accountability only before the Supreme Judicial Council (SJC) in accordance with the procedure laid down in Article 209 of the Constitution.

The court also declared all the extra-constitutional steps of proclamation of emergency and others valid. In absence of parliament, the court said, General Pervez Musharraf, in pursuance of the proclamation of emergency, may in the larger public interest and the safety, security and integrity of Pakistan - under the principle of salus populi suprema lex (‘Let the good of the people be the supreme law’) - perform all acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it; all acts which tend to advance or promote the good of the people; and perform; and all acts required to be done for the ordinary orderly running of the state.

http://www.dailytimes.com.pk/default...-11-2007_pg1_1