Doctrine of Necessity

2014 PLD 47 SUPREME-COURT Judicial Precedent

Arts. 184 & 199Judicial Review of administrative actionsIllegalities and irregularities in the bidding process for grant of lease of public power plantCondoning illegalities in the public interestPublic InterestDoctrine of necessity

Plea taken before the Supreme Court was that the court should, despite irregularities and defects in the bidding process; condone the tainted transaction in the public interest as it was contended by the respondent that there was no unfairness, inequity, and impropriety in the final stage of the bidding process and Its evaluation

Validity

Court was urged to accomplish the impossible: to condone a breach of the rule of law in public interests

If the court takes upon itself to selectively condone infractions of obligations owed by the State to the people, any semblance of the rule of law in the country will evaporate

Assertion that the final stage of the bidding process was free from procedural defects was at best, a questionable assertion and at worst, was deeply inimical to the idea of Rule of Law

Protracted series of defective decisions followed by a final procedurally adequate decision will not lead to a lawful outcome

If the courts focus only on the final stage of the process, it will give carte blanche to the State agencies to abuse the discretion that has been delegated to them by the principals i.e. the honourable people of Pakistan

In asking the court to `condone' a violation of the fiduciary duties owed by the State agency to the people, resort is being made to the now defunct "doctrine of necessity "

Path of expediency and subjective notions of `State necessity' are dead and buried

Idea that the court ought to base its decisions on the consequences of government action alone without consideration of the decision-making process is a frontal assault on the very concept of the rule of law

Idea of a "beneficial" deviation from core fiduciary duties of undivided loyalty, prudence, and reasonableness, which the State functionaries owe to the people of Pakistan must be rejected in the strongest terms.

2013 CLC 714 ISLAMABAD Judicial Precedent

Arts. 218, 213 & 199Constitutional petitionAppointment of Chief Election Commissioner and Members of the Election Commission of PakistanLachesDoctrine of necessityApplicabilityScope

Petitioners impugned the appointment of the Chief Election Commissioner as well as the Members of the Election Commission of Pakistan on the ground that such appointments were not made in accordance with Art.213 and Art.218 of the Constitution and contended that holding of elections in the near future should not come in the way of making a declaration that the appointments were made without following the prescribed procedure and that the Supreme Court of Pakistan buried the "doctrine of necessity"

Validity

Petitioner had not impleaded the necessary parties as respondents in the present petition, therefore, the constitutional petition had an inherent defect

Impugned appointments were made on 11-8-2011 and 16-7-2012 whereas the present constitutional petition was filed in 2013, therefore, the same was hit by laches

Contention of petitioners that they only came to know about the impugned appointments recently through the electronic media was nothing but a fallacy, and was without force

High Court observed that timing of the present Constitutional petition required attention and a sensitive approach; and in the light of the fact that the tenure of the National and Provincial Assemblies was coming to an end soon, therefore, even if the argument of the petitioners was accepted, even then, at the present stage, High Court shall refrain from issuing a writ; that undoubtedly the Supreme Court had buried the "doctrine of necessity" for all times to come, and that superior courts had become more vigilant in appreciating the intent of any party in bringing any matter before the courts

Constitutional petition, being without merit, was dismissed, in circumstances.

2001 PLD 233 SUPREME-COURT Judicial Precedent

Not restricted to criminal prosecution alone

2000 PLD 869 SUPREME-COURT Judicial Precedent

Doctrine of Necessity

Not restricted to criminal prosecution alone.

1994 PLD 363 SUPREME-COURT Judicial Precedent

Application

Prerequisites.

1977 PLD 657 SUPREME-COURT Judicial Precedent

Doctrine of necessity-Contention that question of application of doctrine of necessity does not arise in present case since with suppression or destruction of old Order even such doctrine or concept disappeared and could no longer be regarded as part of judicial system obtaining in Pakistan

Held: Question of considering application of doctrine of necessity did arise in case in hand since Court not persuaded of military intervention providing its own legality simply for reason of its being accepted by people and becoming effective in such sense-