The doctrine of necessity refuses to go away. The flirtation continues. It is a constant phenomenon in this country. This doctrine comes in handy where the constitution and law fail to provide any way out. It is something extra-constitutional and extra-legal. It is a panacea and a cure for all unconstitutional acts and illegalities committed under the sun. Where every logic, argument, reasoning and interpretation fails, this doctrine comes in aid. It gives legitimacy to every unlawful and unconstitutional act. It serves as the foundation upon which the superstructure is built. The underpinning idea of this doctrine is to make a compromise with the deep state; to surrender institutional independence to it and not to earn its ire by upholding the letter of law and the majesty of the constitution. Chief Justice Muhammad Munir sowed the seeds of this notorious doctrine in the Molvi Tameez-ud-Din Case. Since then, it was watered many a time. Now, it has taken deep roots in the judicial consciousness. Every once in a while, an effort is made to uproot it. However, it refuses to give way to the rule of law and constitution. Necessity becomes paramount and overriding consideration. When Justice Waqar Ahmed Seth and Justice Shahid Karim, two of the three judges of the Special Court established under the Criminal Law Amendment (Special Court) Act read with Article 6 of the Constitution and the High Treason (Punishment) Act, 1976, returned a guilty verdict of Pervaiz Musharraf, it was thought in some legal circles that the door to coup d’état was slammed shut. A robust reaction was witnessed: Paragraph 66 of the judgment delivered by Justice Waqar Ahmed Seth became the proverbial punching bag. It was blown out of proportion to take the sting out of the rest of the 65 paragraphs. A fiery press conference was held, indicating to file a reference under Article 209 of the Constitution before the Supreme Judicial Council against him. Chief Justice Muhammad Munir sowed the seeds of this notorious doctrine in the Molvi Tameez-ud-Din Case. Since then, it was watered many a time. Now, it has taken deep roots in the judicial consciousness. Every once in a while, an effort is made to uproot it. However, it refuses to give way to the rule of law and constitution. Necessity becomes paramount and overriding consideration There are mainly three arguments put forward by the apologists of Musharraf. These need to be dealt with one by one. The first and foremost argument advanced is that since cabinet approval was not sought by the then Prime Minister, Mian Muhammad Nawaz Sharif, the formation of Special Court was unconstitutional. The fallacy in the logic of this argument is self-evident. If it is taken to a logical conclusion, every decision made by Nawaz Sharif as the Prime Minister of the country would stand vitiated. Even by a common-sense standard, how could he have foreseen that a judgment of the Apex Court would make the approval of the whole Cabinet a condition precedent for the prime minister after three years? It is well-settled law that judgments of the superior Courts are to be applied prospectively and on the pending matters/cases. They do not operate retrospectively. The ratio laid down in the Mustafa Impex case (PLD 2016 SC 808) is erroneously applied. This judgment requires that the Prime Minister shall get the approval of the whole cabinet before making any order or decision. It was handed down in 2016, while the Supreme Court accepted the Sharif government’s request to set up a Special Court to try Musharraf under Section 2 of the High Treason (Punishment) Act 1973 of the constitution on November 18, 2013. The second argument made is that since the words “hold in abeyance” were inserted in 2010 by the 18th Amendment, Musharraf could not be held guiltily retrospectively because of Article 12 of the Constitution. Regrettable as it is, those coming up with this deceptive argument don’t read Clause 2 of Article 12. This clause in no certain terms gives a retrospective effect to the constitutional offence committed under Article 6 either by abrogation or by subversion. Justice Shahid Karim, in his erudite and elaborative judgment, shines a light on it in para No. 50. This clause carves out an exception to the right against retroactive punishment. The reason is not far to seek: Abrogation, subversion or suspension of Constitution is an offence under the Constitution, and those committing it cannot be allowed to go scot-free even though it is applied ex post facto. Further, he held that while designing this provision, the framers might have Oliver Cromwell’s example at the back of their minds. Needless to emphasise that the five charges that were made against Musharraf centre on “subversion of the Constitution.” And both the judges held him guilty on subversion. “Hold in abeyance” was purposefully employed when an emergency was imposed on November 3, 2007, to avoid getting attracted the mischief of Article 6. It was merely semantic to bring the case out of its scope. The case of Sindh High Court Bar Association (PLD 2009 SC 879) shines a detailed light on the phraseology used in Article 6 to hold that “hold in abeyance” would tantamount to the subversion of the Constitution. The third argument put forward is that Musharraf was not afforded the guarantee of the due process enshrined in Article 10-A of the Constitution, as his trial was held in absentia. This argument would have been tenable and valid, had Musharraf not been present in the Court at the time of framing of charge. The charge was read over to him on 18th February 2014, as is evident from a perusal of the paragraph no13 of the judgment authored by Justice Waqar Ahmad Seth. And he pleaded not guilty on all 5 counts, manifesting his desire to stand the trial. Even otherwise, his counsel, Farogh Naseem, the law minister, cross-examined the witnesses for days on end. Further, the verdict was announced after 6 long years. Now it does not lie in his mouth to turn around and invoke Article 10 & 10-A, not least when the verdict was given after holding the full-blown trial. In a word, the requirements of the due process such as an opportunity to produce evidence, to cross-examine, to be represented by a counsel were fully satisfied. Even otherwise, the SC in its judgment reported as 2019 SCMR 1029 (Lahore High Court BR Association V General (R) Musharraf) directed the Special Court to go ahead with the trial in his absence because of Section 9 of the Criminal Law Amendment (Special Court) Act, 1976 and judgments regarding an absconder. It was further held that it would not offend against Article 10-A of the Constitution, as the trial could not be left to the mercy and sweet will of the accused. The moment the Special Court delivered the judgment, convicting Musharraf of high treason and sentencing him to death, it became “Functus Officio.” It stood disbanded and became defunct. In other words, the proverbial Rubicon was crossed. There was no going back. The convicted Musharraf had had only one legal remedy, that is, to prefer an appeal before the Supreme Court. In the wake of this verdict, the petition under Article 199 of the Constitution challenging the formation of Special Court pending adjudication before the Lahore High Court was rendered infructuous for all intents and purposes. The LHC should have stayed its hands and not assumed the jurisdiction to proceed with the matter. But it was not to be. It turns out to be the classical case of putting the cart before the horse. It begs the question, can the High Court sit in judgment over the orders of the Supreme Court? The answer is a negative one. The Supreme Court settled all the subtle legal questions facing the Special Court in various orders challenged before it. A case in point is the statement recorded under Section 342 Cr.p.c. Musharraf was given ample opportunities to get his statement recorded under it, but he brought dilatory tactics into play by seeking adjournment after adjournment to buy time and avoid getting the trial completed. The Lahore High Court judgment will leave the jurisprudence in tatters and turn the settled law on its head to provide Musharraf with the speediest justice. Musharraf’s counsel adopted a circuitous route to overturn his conviction and declare the formation of Special Court ultra vires the Constitution. Even otherwise, it is a well-entrenched law that the appeal is a continuation of the trial and all the factual and legal controversies reopen in it. However, Musharraf’s counsel bypassed it. It is simply baffling that where there was an appeal provided, how High Court could entertain, hear and adjudicate upon the petition. Now that an appeal has been filed in the Supreme Court, one earnestly hopes that the Supreme Court would hold aloft the banner of rule of law. The review has also been filed in the Lahore High Court against this decision. The writer is a practising lawyer and a columnist based in Lahore