Doctrine of necessity
Encyclopedia
The term Doctrine of Necessity is a term used to describe the basis on which extra-legal actions by state actors, which are designed to restore order, are found to be constitutional. The maxim
on which the doctrine is based originated in the writings of the medieval jurist Henry de Bracton
, and similar justifications for this kind of extra-legal action have been advanced by more recent legal authorities, including William Blackstone
.
In modern times, the term was first used in a controversial 1954 judgment in which Pakistani Chief Justice Muhammad Munir
validated the extra-constitutional use of emergency powers by Governor General
, 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 has since been applied in a number of Commonwealth
countries, and in 2010 was invoked to justify extra-legal actions in Nepal
.
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, 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 May 16, 1955 it ruled:
1. The Governor General in certain circumstances had the power to dissolve the Constituent Assembly.
2. 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.
3. The new Assembly (formed under the Constituent Convention Order 1955) would be valid and able to exerise all powers under the Indian Independence Act 1947
.
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, 'the well-being of the people is the supreme law.'
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
. 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.
n National Assembly passed a resolution making Vice President Goodluck Jonathan
the Acting President and Commander in Chief of the Armed Forces. Both chambers of the Assembly passed the resolution after President Umaru Yar'Adua, who for 78 days had been in Saudi Arabia
receiving medical treatment, refused 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
to assert that the Senate had been guided by the "doctrine of necessity" in arriving at its decision.
Legal maxim
A legal maxim is an established principle or proposition. The Latin term, apparently a variant on maxima, is not to be found in Roman law with any meaning exactly analogous to that of a legal maxim in the Medieval or modern sense of the word, but the treatises of many of the Roman jurists on...
on which the doctrine is based originated in the writings of the medieval jurist Henry de Bracton
Henry de Bracton
Henry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....
, and similar justifications for this kind of extra-legal action have been advanced by more recent legal authorities, including William Blackstone
William Blackstone
Sir William Blackstone KC SL 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 in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
.
In modern times, the term was first used in a controversial 1954 judgment in which Pakistani Chief Justice Muhammad Munir
Muhammad Munir
Muhammad Munir was Chief Justice of Pakistan from 1954 to 1960. After doing MA from Government College Lahore he joined Law College to earn his L.L.B. He started his career as a lawyer at Amritsar in 1921, later on he shifted to Lahore in 1922....
validated the extra-constitutional use of emergency powers by Governor General
Governor-General of Pakistan
The Governor-General of Pakistan was the representative in Pakistan of the Crown from the country's independence in 1947. When Pakistan was proclaimed a republic in 1956 the connection with the British monarchy ended, and the office of Governor-General was abolished.-History:Pakistan gained...
, Ghulam Mohammad. In his judgment, the Chief Justice cited Bracton's
Henry de Bracton
Henry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....
maxim
Legal maxim
A legal maxim is an established principle or proposition. The Latin term, apparently a variant on maxima, is not to be found in Roman law with any meaning exactly analogous to that of a legal maxim in the Medieval or modern sense of the word, but the treatises of many of the Roman jurists on...
, '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 has since been applied in a number of Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
countries, and in 2010 was invoked to justify extra-legal actions in Nepal
Nepal
Nepal , officially the Federal Democratic Republic of Nepal, is a landlocked sovereign state located in South Asia. It is located in the Himalayas and bordered to the north by the People's Republic of China, and to the south, east, and west by the Republic of India...
.
Pakistan, 1954: First use of the Doctrine of necessity
On October 24, 1954 the Governor-General of Pakistan, Ghulam Mohammad, dissolved the Constituent AssemblyConstituent Assembly of Pakistan
The Constituent Assembly of Pakistan was formed to write Pakistan's constitution, and serve as its first parliament. It first convened on 11 August 1947, before the end of British rule on August 15, 1947. Quaid-i-Azam Muhammad Ali Jinnah was the first President of this Assembly until his death on...
and appointed a new Council of Ministers on the grounds that the existing one no longer represented the people of Pakistan. Stanley de Smith
Stanley Alexander de Smith
Stanley Alexander de Smith FBA was an English academic lawyer and author.- Biography :Stanley de Smith was born in London and educated at Southend High School and St Catharine's College, Cambridge ; he received his doctorate from the University of London in 1959...
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, 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 May 16, 1955 it ruled:
1. The Governor General in certain circumstances had the power to dissolve the Constituent Assembly.
2. 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.
3. The new Assembly (formed under the Constituent Convention Order 1955) would be valid and able to exerise all powers under the Indian Independence Act 1947
Indian Independence Act 1947
The Indian Independence Act 1947 was as an Act of the Parliament of the United Kingdom that partitioned British India into the two new independent dominions of India and Pakistan...
.
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
Henry de Bracton
Henry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....
maxim, 'that which is otherwise not lawful is made lawful by necessity', and the Roman law maxim urged by Ivor Jennings, 'the well-being of the people is the supreme law.'
Grenada, 1985: Second use of the Doctrine of necessity
In a 1985 judgment, the Chief Justice of the High Court of GrenadaGrenada
Grenada is an island country and Commonwealth Realm consisting of the island of Grenada and six smaller islands at the southern end of the Grenadines in the southeastern Caribbean Sea...
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 Bishop
Maurice Rupert Bishop was a Grenadian politician and revolutionary who seized power in a coup in 1979 from Eric Gairy and served as Prime Minister of the People's Revolutionary Government of Grenada until 1983, when he was overthrown in another coup by Bernard Coard, a member of his own...
. 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: Nigerian parliament creates an Acting President
A related (although non-judicial) use of the doctrine took place when, on February 9, 2010, the NigeriaNigeria
Nigeria , officially the Federal Republic of Nigeria, is a federal constitutional republic comprising 36 states and its Federal Capital Territory, Abuja. The country is located in West Africa and shares land borders with the Republic of Benin in the west, Chad and Cameroon in the east, and Niger in...
n National Assembly passed a resolution making Vice President Goodluck Jonathan
Goodluck Jonathan
Goodluck Ebele Azikiwe Jonathan, GCFR, BNER, GCON is the 14th Head of State and current President of Nigeria.He was Governor of Bayelsa State from 9 December 2005 to 28 May 2007, and was sworn in as Vice President of the Federal Republic of Nigeria on 29 May 2007. Jonathan is a member of the...
the Acting President and Commander in Chief of the Armed Forces. Both chambers of the Assembly passed the resolution after President Umaru Yar'Adua, who for 78 days had been in Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
receiving medical treatment, refused 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 Mark
David Alechenu Bonaventure Mark is the President of the Senate of Nigeria and Senator for the Benue South constituency of Benue State. He is a member of the People's Democratic Party ....
to assert that the Senate had been guided by the "doctrine of necessity" in arriving at its decision.