Saturday, 8 March 2014
The Doctrine of necessity in perspective
The doctrine of necessity is a rarely used political concept or utilitarian idea and is used to define and validate extra-constitutional issues that fall outside the purview of the constitution but are necessary to preserve political stability. The fundamental objective of the doctrine is to satisfy the exigencies which have been created by certain situations outside the contemplation of the constitution or the rule of law; and its significant feature is the deliberate circumvention of the constitution or some aspects of the rule of law in order to get out of political quagmire.
It is also a situation where the rule of law and constitution has to be adulterated by extra-legal civil means in the short term in order to preserve the constitutional, the rule of law, the government and democracy in the long term. Simply put: to save the country, the constitution has to be dumped and the rule of law has to be slanted. In addition, the doctrine is not a legal theory but a concession to human weakness. It is also a political arrangement that has garnered some form of legal validation and global support.
Even though, the doctrine which is sometimes referred to as the “necessity defense” or “choice of evils defense” may be old and predates the common law, the first time it was ever invoked to legalize a government action was in 1954 in Pakistan just seven years after the creation of Pakistan when the Pakistani Supreme Court gave legal support to the extra judicial action of the country’s Governor-General who used extra constitutional mean of emergency power to dissolve the country’s constituent assembly and appointed a new council of ministers on the ground that the constituent assembly no longer represented the people. In an action that followed, the then Pakistani Supreme Court Chief Justice not only validated the extra-constitutional action of the Governor–General but used the maxim: “ that which is otherwise not lawful is made lawful by necessity”. The Chief Judge further postulated that in certain situations such as it was created in Pakistan at the time, it was necessary to go beyond the constitution because the well being of the people is more important than the constitution and this well being must be regarded as the supreme law of the land thereby providing legal teeth for the unconstitutional action of the Governor-General. To this day, the maxim has been attached to the doctrine as its hallmark.
Another recorded instance of the political use of the doctrine to justify an extra constitutional act was in 1985 when the High Court of Granada used the theory to give legal backing to the existence of a special court trying the people who had conducted a coup against the ex-leader, Maurice Bishop. The Court was established under what the government called the “people’s law” after the country’s constitution was abrogated. In the trial which took place after the country’s constitution was restored, the coup plotters who were being tried for murder objected to the legal jurisdiction of the Court under the restored constitution and argued that the Court had no jurisdiction over them by virtue of the restoration of the country’s constitution. They further argued that the Court was not established by law but came into existence by fiat and extra-legal method. In its ruling, the High Court agreed with the submission of the Defendants that the Court was created outside the provision of the Constitution but held that the Court was validly established by government having been created at the time due to the doctrine of necessity and the exigency of the situation that prevailed at the time it was created.
In the two major recorded instances, when the doctrine of necessity was used, it was the judiciary that validated the extra constitutional acts of government and both instances involved developing countries. However, this is not to say that the doctrine has not been used in the 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 infringe on the rule of law and fundamental human rights.
The recent Nigerian experience in which the National assembly of Nigeria had to resort to extra constitutional procedure to empower the vice president due to the failure of the president to transmit a letter to the National Assembly informing the National Assembly that he was otherwise unable to discharge the functions of the office in which case and until he transmits to the National Assembly a declaration to the contrary, the functions of the president would be discharged by the vice-president as acting president in accordance with Section 145 of the 1999 Constitution of Nigeria is another classic example of the use of the doctrine of necessity to justify a hitherto unconstitutional process.
On February 9, 2010, the National Assembly of Nigeria by a resolution adopted by both Chambers of the National Assembly following a request by the Governors’ Forum empowered the Vice-President of Nigeria to act as the President and Commander-in-Chief of the Nigerian Armed Forces following the protracted illness of the substantive president who may not be able to discharge the function of the office as required by the constitution. The doctrine of necessity was adopted by the National Assembly as a political solution to the constitutional logjam created by the failure of the president to follow the constitutional process and to avoid the lacuna created by his long absence from office. The doctrine was also used as a necessary measure to save Nigeria from imminent collapse in the face of the constitutional blockage and human contributions to the constitutional flaws.
The doctrine of necessity though, politically 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 shoddily used and flagrantly 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. Unfortunately, they always have a good allies in the judiciary to validate such actions as necessary to save Pakistan from collapsing. To this effect, the Pakistani experience should not be considered as a good model and legitimate precedent.
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.”