The Doctrine of Public Necessity: A Premature Burial?

Two weeks ago, the Chief Justice of Pakistan’s Supreme Court praised the nation for burying the doctrine of necessity by supporting that country’s lawyers’ movement for the rule of law.  Last year, the Lahore High Court Bar Association staged a symbolic funeral of the doctrine and buried it in front of the High Court building.

These are heady days for Pakistan’s judiciary and lawyers.  The popular lawyers’ movement, triggered by the suspension of the Chief Justice in March 2007 by the then military dictator, waged a prolonged and peaceful struggle for restoration of democracy and the rule of law.  The final victory came on March 15, 2009, when the Chief Justice and all other judges of superior courts fired in the wake of the November 3, 2007 declaration of emergency were restored.

The doctrine of necessity was a particular target of the lawyers’ movement as it had been deployed by high courts to validate repeated extra-constitutional usurpations of power by the military.  The popular desire to bury the doctrine and to celebrate its burial is understandable, even laudatory.