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 Pakistan
LANDMARK 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 5 th 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.”
