Doctrine of Necessity

Presented By:

Majid Bashir 4750

Business and Industrial Law

11-2-2011

Definition:

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.

History of Usage in PakistanLANDMARK CASES

Pakistan, 1954:Maulvi Tamizuddin Khan Vs Governor General Ghulam Muhammad Khan

In 1954, just seven years after the creation of Pakistan, the then Governor General of Pakistan Ghulam Muhammad dissolved the first constitutional assembly and the government of the Prime Minister Khawaja Nizamuddin. The President of the assembly at the time Moulvi Tamizuddin, challenged the dissolution of the assembly in the Sindh High Court (PLD 1955 Sindh 96) and won; the dissolution was found to be illegal and unconstitutional. On appeal to the Supreme Court of Pakistan by the Federal Government(PLD 1955 Federal Court 240), the Chief Justice of the Supreme Court Muhammad Munir reversed the decision of the Sindh High Court and decided in favour of the Governor General. Justice Munir, relying on Bracton’s maxim ‘that which is otherwise not lawful is made lawful by necessity’ gave birth to the “Doctrine of Necessity” in Pakistan by declaring that: ‘ Subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under stress of necessity, the necessity being referable to an intention to preserve the Constitution, the state, or the society, and to prevent it from dissolution, and affirms… that necessity knows no law…. necessity makes lawful which otherwise is not lawful’.

Pakistan, 1958 Dosso vs Federation of Pakistan

By proclamation of October 7, 1958 the President of Pakistan Maj General Iskandar Mirza annulled the Constitution of 2nd March 1956, dismissed the Central Cabinet and the Provincial Cabinets and dissolved the National Assembly and the Provincial Assemblies. Furthermore, declared Martial law and the Chief of Army Staff of the Pakistan Army was declared as the Chief Martial Law Administrator. Three days later the President promulgated the Laws continuance in force order, the general effect of which was the validation of laws other than the Constitution that were in force before the proclamation and jurisdiction of all courts including the Supreme Court and the High Courts. On the hearing before the Supreme Court (PLD 1958 SC 533) Chief Justice Muhammad Munir declared in favour of the Federation stating that ‘ it sometimes happens, however, that the Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing constitution but also the validity of the national legal order… thus a victorious revolution is an internally recognized legal method of changing a constitution… if what I have already stated is correct, then the revolution having been successful, it satisfies the test of efficacy and becomes a basic law-creating factor’.

Pakistan, 1972 Asma Jilani vs The Government of Punjab & Others

The precise question that came before the Supreme Court was whether the High Courts had jurisdiction under Article 98 of the Constitution of Pakistan (1962) to enquire into the validity of the detention under Martial Law Regulation No. 78 of 1971 in view of the bar created by the provisions of the Jurisdiction of Courts Order, 1969, the further question was whether the doctrine enunciated in the Dosso Case (PLD 1958 SC 533) was correct. The Supreme Court (PLD 1972 SC 139) took an unprecedented step and shifted away from the Doctrine of Necessity and Revolutionary Legality Doctrine of Justice Munir and declared that General Yahya Khan had usurped power that his action were not justified and consequently his martial law was illegal. The court came to the conclusion that ‘with the outmost respect we would agree with the criticism that the learned Chief Justice Muhammad Munir not only misapplied the doctrine of Hans Kelsen, but also fell into error that it was a generally accepted doctrine of modern jurisprudence. Even the disciples of Kelsen have hesitated to go far as Kelsen had gone… we are unable to resist the conclusion that Muhammad Munir erred in interpreting Kelsen’s theory and applying the same to the facts before him. The principle enunciated by him is wholly unsustainable’.

Pakistan, 1977, Begum Nusrat Bhutto Vs. Chief of Army Staff & Federation of Pakistan

General Zia ul Haq, the then Chief of Army Staff on 5th July 1977 imposed Martial Law and held the 1973 Constitution in abeyance he furthermore removed and arrested the then sitting Prime Minister Zulfiqar Ali Bhutto and suspended all democratic institutions. The imposition of the Martial Law was challenged by Nusrat Bhutto (PLD 1977 SC 657) however, Sheikh Anwar-ul-Haq the newly appointed Chief Justice declared that the imposition of Martial Law was valid on the basis of the “Doctrine of State Necessity”. In its judgment dismissing Nusrat Bhutto’s petition the Supreme Court held that ‘ after massive rigging of elections followed by complete breakdown of law and order situation, bringing the country on the brink of disaster, the imposition of martial law had become inevitable…. The court would like to state in clear terms that it had found it possible to validate the extra constitutional action of the Chief Martial Law Administrator not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional breakdown, but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible’.

Pakistan, 2000; Zafar Ali Shah Case Vs General Pervez Musharaf

Zafar Ali Shah challenged the constitutionality of the October 12 military coup by General Pervaiz Musharaff. The Supreme Court (PLD 2000 SC 869) after hearing the arguments held ‘That General Pervez Musharaf, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through Proclamation of Emergency dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he has been described as Chief Executive, having validly assumed power by means of an extra-Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely: All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it; All acts which tend to advance or promote the good of the people; All acts required to be done for the ordinary orderly running of the State; All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive’.

History of usage in the World

Grenada, 1985: In a 1985 judgment, the Chief Justice of the High Court of Grenada 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

Nigeria, 2010:

A related (although non-judicial) use of the doctrine took place when, on February 9, 2010, the Nigerian 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.

The Doctrine if Necessity and its usage in law

Doctrine of Necessity is a concept that is used in many fields of law as a defense. It is used in criminal law and bankruptcy law to justify or excuse an act which would otherwise not usually be allowed by the law. Criminal Law:

A defendant who has committed a crime can use necessity as a defense. For instance, a defendant who has committed murder may be found not guilty if he acted to defend his life, or even the life of another as long as the defendant can show that it was necessary to do so.Bankruptcy Law:

In the United States in bankruptcy law, necessity is often cited as a reason to go against one of law’s fundamental principles, i.e. equal treatment of similarly situated creditors. For e.g. a debtor has gone bankrupt and wants to restructure, he has 10 creditors and they are all unsecured and yet the debtor wants to pay in full before acceptance of any plan the pre-petition debts of 2 of those creditors. The US Bankruptcy Code states that one cannot pay any unsecured creditors until the acceptance of a plan, however, the debtor will ask for relief from the code on the basis of necessity, saying it is necessary to pay these 2 creditors now because if he doesn’t pay them now then the entire reorganization process will collapse.International Law:

Under International law, a customary international obligation or an obligation granted under a Bilateral Investment Treaty 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 Continental Casualty Company v Argentine Republic the International Centre for Settlement of Investment Disputes (ICSID) ruled that “in order to invoke the Doctrine of Necessity the Invoking State must not have contributed to the state of necessity, and the actions taken were only way to safeguard an essential interest from grave and impending danger”.

Conclusion• The doctrine of necessity is a rarely used political concept and is used to

define and legalize extra-constitutional issues that fall outside the scope of the constitution but are necessary to preserve political stability. The fundamental objective of the doctrine is to satisfy the emergency which have been created by certain situations outside the consideration of the constitution or the rule of law.

• The doctrine has also been used in developed countries to justify some actions of government that seemingly fall outside the constitutional arrangements or the rule of law particularly, after the September 11, 2001 terrorists attack in the United States. Since then, the principle of necessity has been used in one form or another by the U.S, United Kingdom, Canada and several EU countries to adopt measures aimed at safeguarding national security and preservation of life even while those measures have the tendency to violate the rule of law and fundamental human rights.

• The doctrine of necessity though necessary in some situation, it should not be seen or regarded as the best solutions to all problems; hence politicians will always see it as the most convenient way to abandon the constitution an action that may escalate into the violation of the rule of law and human rights. For instance, the doctrine has been carelessly used and unashamedly abused in Pakistan as every government has used it as a political weapon to either intimidate their opponents or repress the rule of law using extra constitutional means.

• In conclusion, the doctrine of necessity is noble when properly used and valuable when rarely applied. Even though, there is a common belief that all human endeavors are controlled by law and every human act determined by law, it must not be assumed that all acts of man are contemplated by law. Therefore, certain conducts though, harmful and seemingly unconstitutional are necessary in order to avert a greater harm. In the words of Granville Williams : “[S]ome acts that would otherwise be wrong are rendered rightful by a good purpose, or by the necessity of choosing the lesser of two evils.”