Doctrine of Necessity

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 juristHenry 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. [1] In his judgment, the Chief Justice citedBracton'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.

Pakistan: First use of the Doctrine of necessity

On October 24, 1954 the Governor-General of Pakistan, Ghulam Mohammad, dissolved the Constituent Assembly 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.[2] 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.[3] 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.[4] 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 theIndian Independence Act 1947.[5] 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 wellbeing of the people is the supreme law.'

Doctrine of Necessity England law

In English law, the defence of necessity recognises that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which this defence has succeeded. However, the Crown Prosecution Service tends to choose not to prosecute those cases where it believes potential defendants have acted reasonably in all the circumstances.

The Principle: There must be an urgent and immediate threat to life which creates a situation in which the defendant reasonably believes that a proportionate response to that threat is to break the law. This reflects the distinction between the defenses of necessity and duress in that the former is pressure of circumstances arising naturally, whereas the latter is a threat from an entirely human agency that overpowers the will of the defendant. The general approach was laid down by Lord Denning in Southwark London Borough Council v Williams (1971) 2 AER 175 that necessity should be denied as a general defense because otherwise anarchy and disorder would follow. If hunger was allowed to become the basis of necessity, any poor person might seek to justify burglary to steal food by arguing that he or she had reasonably believed that this was a proportionate response to the threat of malnutrition. Thus, the fact that hunger does not arise spontaneously, and there are other ways in which to seek relief from poverty (e.g. by seeking welfare support or charity), would deny the defense of necessity. The Canadian courts put the issue succinctly. In Perka v The Queen (1984) 2 SCR 232, Dickson J. held at p250 that "If the defense of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognised, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale." When considering necessity in R v Cole (1994) Crim. LR 582 Simon Brown LJ. held that the peril relied on to support the plea of necessity lacked imminence and the degree of directness and immediacy required of the link between the suggested peril and the offense charged. This defendant robbed two building societies in order to repay debts. The form of defense was "duress by circumstance" which attempts to extend the coverage of duress by borrowing the idea of an uncontrollable external circumstance forcing a choice by the defendant to break the law.

Doctrine of Necessity in USA Law

In U.S. criminal law, necessity may be either a possible justification or an exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm and when that conduct is not excused under some other more specific provision of law such as self defense. Except for a few statutory exemptions and in some medical cases [1] there is no corresponding defense in English law.[2][contradictory] For example, a drunk driver might contend that he drove his car to get away from a kidnap(cf. North by Northwest). Most common law and civil law jurisdictions recognize this defense, but only under limited circumstances. Generally, the defendant must affirmatively show (i.e., introduce some evidence)

that (a) the harm he sought to avoid outweighs the danger of the prohibited conduct he is charged with; (b) he had no reasonable alternative; (c) he ceased to engage in the prohibited conduct as soon as the danger passed; and (d) he did not himself create the danger he sought to avoid. Thus, with the "drunk driver" example cited above, the necessity defense will not be recognized if the defendant drove further than was reasonably necessary to get away from the kidnapper, or if some other reasonable alternative was available to him. However case law suggests necessity is narrowed to medical cases.

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 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.