The doctrine of necessity is the basis on which extra-constitutional actions by administrative authority, which are designed to restore order or attain power on the pretext of stability, are considered to be lawful even if such an action contravenes established constitution, laws, norms, or conventions. The
maxim
Maxim or Maksim may refer to:
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on which the doctrine is based originated in the writings of the medieval jurist
Henry de Bracton
Henry of Bracton, also Henry de Bracton, also Henricus Bracton, or Henry Bratton also Henry Bretton (c. 1210 – c. 1268) was an English cleric and jurist.
He is famous now for his writings on law, particularly ''De legibus et consuetudinibus ...
, and similar justifications for this kind of extra-legal action have been advanced by more recent legal authorities, including
William Blackstone
Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family i ...
.
In a controversial 1954 judgment, Pakistani Chief Justice
Muhammad Munir
Muhammad Munir (1895–1979) was the second Chief Justice of Pakistan serving from 1954 to 1960.
Background
Munir obtained his degree of master's in English Literature from Government College University Lahore, he joined Law College to earn his ...
validated the extra-constitutional use of emergency powers by
Governor General
Governor-general (plural ''governors-general''), or governor general (plural ''governors general''), is the title of an office-holder. In the context of governors-general and former British colonies, governors-general are appointed as viceroy t ...
,
Ghulam Mohammad.
In his judgment, the Chief Justice cited Bracton's maxim, 'that which is otherwise not lawful is made lawful by necessity', thereby providing the label that would come to be attached to the judgment and the doctrine that it was establishing.
The doctrine of necessity may also refer to the necessity of a judge with a reasonable apprehension of bias continuing to decide a matter if there is no alternative to that judge. The Supreme Court of Canada applied this doctrine in the 1998 ''
Reference re Remuneration of Judges (No 2)'' case.
International law
In
international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
, the exception is allowed by the UN's
International Law Commission
The International Law Commission (ILC) is a body of experts responsible for helping develop and codify international law. It is composed of 34 individuals recognized for their expertise and qualifications in international law, who are elected by t ...
(ILC) to be used by a state facing "grave and imminent peril":
Therefore, an obligation of
customary international law
Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its ...
or an obligation granted under a
bilateral investment treaty
A bilateral investment treaty (BIT) is an bilateral treaty, agreement establishing the terms and conditions for private investment by nationals and companies of one Sovereign state, state in another state. This type of investment is called foreign ...
may be suspended under the doctrine of necessity. It is "an exception from illegality and in certain cases even as an exception from responsibility."
In order to invoke the doctrine of necessity:
# The invoking State must not have contributed to the state of necessity,
# Actions taken were the only way to safeguard an essential interest from grave and impending danger.
Instances of invocation
The doctrine of necessity has been invoked in a number of
Commonwealth
A commonwealth is a traditional English term for a political community founded for the common good. Historically, it has been synonymous with "republic". The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the ...
countries.
Pakistan, 1954
On 24 October 1954 the Governor-General of Pakistan,
Ghulam Mohammad, dissolved the
Constituent Assembly
A constituent assembly (also known as a constitutional convention, constitutional congress, or constitutional assembly) is a body assembled for the purpose of drafting or revising a constitution. Members of a constituent assembly may be elected b ...
and appointed a new Council of Ministers on the grounds that the existing one no longer represented the people of Pakistan.
Stanley de Smith argues that the real reason for the dissolution was because Mohammad objected to the constitution which the Assembly was about to adopt.
The President of the Constituent Assembly,
Maulvi Tamizuddin
Maulvi Tamizuddin Khan (M. T. Khan; March 1889 – 19 August 1963) was the Speaker of Pakistan's Constituent Assembly from 1948 to 1954 and National Assembly of Pakistan between 1962 and 1963.
Early life
Khan was born to a farmer with only thr ...
, appealed to the Chief Court of Sind at Karachi to restrain the new Council of Ministers from implementing the dissolution and to determine the validity of the appointment of the new Council under Section 223-A of the constitution.
In response, members of the new Council of Ministers appealed to the court saying that it had no jurisdiction to approve the request of the President to overturn the dissolution and appointments. They argued that Section 223-A of the constitution had never been validly enacted into the Constitution because it was never approved of by the Governor-General, and therefore anything submitted under it was invalid. The Chief Court of Sind ruled in favour of President Tamizuddin and held that the Governor-General's approval was not needed when the Constituent Assembly was acting only as a Constituent Assembly and not as the Federal Legislature. The Federation of Pakistan and the new Council of Ministers then appealed to the court, the appeal was heard in March 1955 (''Federation of Pakistan v Maulvi Tamizuddin Khan'').
In the appeal hearing under Chief Justice Muhammad Munir, the court decided that the Constituent Assembly functioned as the 'Legislature of the Domain' and that the Governor-General's assent was necessary for all legislation to become law. Therefore, the Chief Court of Sind had no jurisdiction to overturn the Governor General's dissolution and it was held as valid.
However, the ground of which the court found in favour of the Federation of Pakistan called into question the validity of all legislation passed by the Assembly, not to mention the unconstitutionality of the Assembly itself since 1950. To solve this problem, the Governor-General invoked Emergency Powers to retrospectively validate the Acts of the Constituent Assembly. An appeal was filed against the Governor-General for invoking emergency powers and the Chief Justice had to determine the constitutionality of invoking the Emergency Powers and whether the Governor-General could give his assent to legislation retroactively.
[
The Court held that in this case the Governor-General could not invoke emergency powers because in doing so he validated certain laws that had been invalid because he had not assented to them previously. Justice Munir also ruled that constitutional legislation could not be validated by the Governor General but had to be approved by the Legislature. The lack of a Constituent Assembly did not transfer the Legislature's powers over to the Governor-General.
The Court was referred to for an opinion. On 16 May 1955 it ruled:
# The Governor General in certain circumstances had the power to dissolve the Constituent Assembly.
# The Governor-General has during the interim period the power 'under the common law of civil or state necessity' of retrospectively validating the laws listed in the Schedule to the Emergency Powers ordinance.
# The new Assembly (formed under the Constituent Convention Order 1955) would be valid and able to exercise all powers under the '']Indian Independence Act 1947
The Indian Independence Act 1947 947 CHAPTER 30 10 and 11 Geo 6is an Act of the Parliament of the United Kingdom that partitioned British India into the two new independent dominions of India and Pakistan. The Act received Royal Assent on 18 J ...
''.
In his verdict, Munir declared it was necessary to go beyond the constitution to what he claimed was the Common Law, to general legal maxims, and to English historical precedent. He relied on Bracton's maxim, 'that which is otherwise not lawful is made lawful by necessity', and the Roman law maxim urged by Ivor Jennings
Sir William Ivor Jennings ( si, ශ්රීමත් අයිවර් ජෙනින්ග්ස්) (16 May 1903 – 19 December 1965) was a British lawyer and academic. He served as the vice chancellor of the University of Cambridge ( ...
, 'the well-being of the people is the supreme law'.
Grenada, 1985
In a 1985 judgment, the Chief Justice of the High Court of Grenada
Grenada ( ; Grenadian Creole French: ) is an island country in the West Indies in the Caribbean Sea at the southern end of the Grenadines island chain. Grenada consists of the island of Grenada itself, two smaller islands, Carriacou and Pe ...
invoked the doctrine of necessity to validate the legal existence of a court then trying for murder the persons who had conducted a coup against former leader Maurice Bishop
Maurice Rupert Bishop (29 May 1944 – 19 October 1983) was a Grenadian revolutionary and the leader of New Jewel Movement – a Marxist–Leninist party which sought to prioritise socio-economic development, education, and black liberation ...
. The court had been established under an unconstitutional "People's Law" following the overthrow of the country's constitution, which had subsequently been restored. The defendants argued that the court before which they were being tried had no legal existence under the restored constitution, and they were therefore being deprived of their constitutional right to a trial before a "Court established by law". The High Court acknowledged that the lower court "had come into existence in an unconstitutional manner", but "the doctrine of necessity validated its acts." On this basis, the murder trials were allowed to proceed.
Nigeria, 2010: Parliament creates an Acting President
A related (although non-judicial) use of the doctrine took place when, on 9 February 2010, the Nigerian National Assembly passed a resolution making Vice President Goodluck Jonathan
Goodluck Ebele Azikiwe Jonathan (born 20 November 1957)Lawson Heyford, ''The Source'' (Lagos), 11 December 2006. is a Nigerian politician who served as the President of Nigeria from 2010 to 2015. He lost the 2015 presidential election to fo ...
the Acting President and Commander in Chief of the Armed Forces. Both chambers of the Assembly passed the resolution after President Umaru Yar'Adua
Umaru Musa Yar'Adua (16 August 19515 May 2010) was a Nigerian politician who, was the President of Nigeria from 2007 to 2010. He was declared the winner of the Nigerian presidential election held on 21 April 2007, and was sworn in on 29 May 20 ...
, who for 78 days had been in Saudi Arabia receiving medical treatment, was unable to formally empower the vice president to exercise full powers as acting president, as provided for in Section 145 of the country's constitution. No provision of the Nigerian constitution empowering the National Assembly to pass any such resolution, causing Senate President David Mark
David Alechenu Bonaventure Mark , is a retired Nigerian Army Brigadier General and politician. He was President of the Senate of Nigeria from 2007 to 2015 and was the Senator for Benue South Senatorial District Benue State. He is a member of th ...
to assert that the Senate had been guided by the "doctrine of necessity" in arriving at its decision.
UK 2022: Northern Ireland Protocol changes
On 13 June 2022, United Kingdom Foreign Secretary
The secretary of state for foreign, Commonwealth and development affairs, known as the foreign secretary, is a minister of the Crown of the Government of the United Kingdom and head of the Foreign, Commonwealth and Development Office. Seen as ...
Liz Truss
Mary Elizabeth Truss (born 26 July 1975) is a British politician who briefly served as Prime Minister of the United Kingdom and Leader of the Conservative Party from September to October 2022. On her fiftieth day in office, she stepped down ...
introduced the Northern Ireland Protocol Bill
The Northern Ireland Protocol Bill is a proposed Act of the Parliament of the United Kingdom that seeks to unilaterally override parts of the Northern Ireland Protocol (NIP). The NIP is that part of the Brexit withdrawal agreement that governs ...
in the House of Commons
The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. ...
, which, if enacted, would allow the UK government to unilaterally "disapply" (the word used) parts of the Northern Ireland Protocol
The Protocol on Ireland/Northern Ireland, commonly abbreviated to the Northern Ireland Protocol, is a protocol to the Brexit withdrawal agreement that governs the unique customs and immigration issues at the border on the island of Ireland betwe ...
that it had signed up to, a part of the Brexit withdrawal agreement
The Brexit withdrawal agreement, officially titled Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, is a treaty between the European Uni ...
. The UK government
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, image = HM Government logo.svg
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conceded that the bill would mean breaching its obligations under international law but said that its position was justified, explicitly invoking the doctrine of necessity and saying that having to uphold the Protocol was placing unacceptable levels of strain on institutions in Northern Ireland
Northern Ireland ( ga, Tuaisceart Éireann ; sco, label= Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is variously described as a country, province or region. Nort ...
and that there was "no other way" of safeguarding the UK's interests.
On 15 June, vice-president of the European Commission
The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative body o ...
Maroš Šefčovič
Maroš Šefčovič (; born 24 July 1966) is a Slovak diplomat and politician serving as Vice-President of the European Commission for Interinstitutional Relations since 2019, previously holding the office from 2010 to 2014. He has been member o ...
said that there was "no legal nor political justification" for the bill and that it was illegal. He also announced that the Commission would re-open the infringement proceedings against the UK government which had been started in March 2021, including two new counts where it was alleged the UK breached the Protocol.
Notes and references
External links
*
* This article cites many references relevant to the general topic of "doctrine of necessity"
{{Use dmy dates, date=January 2018
Politics of Pakistan
Political terminology in Pakistan
Military terminology of Pakistan
Legal doctrines and principles