'Doctrine of necessity has no application': Supreme Court issues detailed judgement

The Supreme Court in its detailed judgement on Wednesday declared all actions taken by the then President General Pervez Musharraf on November 3, 2007, as unconstitutional and illegal, saying that the doctrine of necessity has no application to an unconstitutional and illegal assumption of power by an authority not provided for in the constitution.
In its 376-page judgement authored by Chief Justice Iftikhar Muhammad Chaudhry, the court has not condoned even a single action of General Pervez Musharraf taken from November 3, 2007 till December 15, 2007 in violation of the constitution. The verdict said that measures taken on November 3 by former President General Pervez Musharraf are unforgivable.
The court, however, held that all actions of the executive and legislative branches of the government taken from November 3, 2007 to December 15, 2007 in the orderly running the State under and in accordance with the constitution and the law would be presumed to be validly and competently done unless challenged on grounds of vires, mala fides, non-conformity with the Constitution or violation of the fundamental rights or on any other available ground.
It has been noted that when the petition of Jamaat-i-Islami and other similar petitions pertaining to the qualification of Pervez Musharraf were decided by the Supreme Court in his favour by a majority of six to three, he and his government were satisfied with the functioning of the apex court.
However, in the second round of litigation commenced on the petition of former Justice Wajihuddin Ahmed, as the hearing in the said case progressed, apprehensions were expressed by the aides of General Pervez Musharraf about a possible adverse decision, which precipitated the November 3, 2007 actions. It has also been held that the elections of February 18, 2008 were held in accordance with the constitution and the law.
The court has declared that the Chief Justice of Pakistan and Judges of the Supreme Court were unconstitutionally and illegally prevented from performing their functions, though they were very much available and able to perform their functions. It has been declared that the Chief Justice of Pakistan and Judges of Supreme Court as well as High Courts, who were declared to have ceased to hold office would be deemed never to have ceased to hold office, thus the appointments of Justice Abdul Hameed Dogar as CJP, and other Judges was unconstitutional and illegal.
The court declared the judgements and orders passed by Dogar-led court in the cases of Tikka Iqbal Muhammad Khan and Wajihuddin Ahmed as unconstitutional and illegal. It is interesting to note that petition filed by Muhammad Iqbal Tikka and Wattan party did not seriously challenge the proclamation of emergency, PCO and Oath of judges Order, 2007.
It is better to note there that review was filed by Tikka Muhammad Iqbal as the main petition was decided by seven-judge bench simply to increase the number of the judges of this court. Review was filed in violation of the SC rules, the judgement adds.
The verdicts says that the grounds taken for imposition of November 3 emergency like alleged deteriorating law and order situation and the erosion of trichotomy of powers enshrined in the constitution did not furnish any basis to General Pervez Musharraf to take the actions of November 3, 2007. It says the emergency was in fact imposed to prevent the Supreme Court from deciding the case of Musharraf's qualification to contest the presidential election which was pending before it.
However, the judgements and orders passed by Dogar-led court in the cases of other litigants, the exercise of financial and administrative powers and any function performed under the constitution would not be affected on the principle of salus populi est suprema lex, the verdict said.
The court held that in the matter of appointment of Judges of the High Courts, the law laid down in Al-Jehad Trust case will be followed. Following the principles enunciated in the Al-Jehad case, the court declared that in the matter of appointment of judges of the high courts, the Governor could act only on the advice of the Chief Minister in terms of Article 105 of the Constitution. Earlier on July 31, a 14-member larger bench of the Supreme Court in its' short order had declared the November 3, 2007 actions of General Musharraf as illegal and unconstitutional.