The doctrine of necessity is the basis on which extraordinary actions by administrative authority, which are designed to restore order or uphold fundamental constitutional principles, are considered to be lawful even if such an action contravenes established constitution, laws, norms, or conventions. 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 a controversial 1954 judgment, 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 may also refer to the necessity of a judge with a reasonable apprehension of bias continuing to decide a matter if there is no alternative to that judge. The Supreme Court of Canada applied this doctrine in the 1998 Reference re Remuneration of Judges (No 2) case.
International law In international law, the exception is allowed by the UN's International Law Commission (ILC) to be used by a state facing "grave and imminent peril": Under the law of State responsibility, necessity is one of the circumstances precluding the wrongfulness of conduct that would otherwise constitute a breach of an international obligation. The doctrine is recognised in Article 25 of the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts, which reflects customary international law as recognised in international practice and judicial decisions. The defence is exceptional and may be invoked only in limited circumstances. Under Article 27 of the ILC Articles, the invocation of necessity does not terminate the underlying international obligation. Once the circumstances giving rise to necessity cease to exist, the obligation resumes and must again be performed, unless it has otherwise come to an end under international law.
Therefore, an obligation of customary international law 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 order to invoke the doctrine of necessity: The invoking State must not have contributed to the state of necessity, Actions taken were the only way to safeguard an essential interest from grave and impending danger.
Historical development The medieval English jurist Henry de Bracton is frequently cited as an early proponent of the doctrine, who presented it in the form of a maxim.See, for example, : "The doctrine of necessity was shown the light of day by... Henry de Bracton."
He was followed by the 18th-century jurist William Blackstone, who used it to justify various laws enacted by the English parliament.See, for example, : "The doctrine of necessity was shown the light of day by two English jurists named William Blackstone (1773-1868) and Henry de Bracton (1210-1268). The doctrine pertains to the principle of making lawful by necessity that which is otherwise unlawful. Hence, allowing the state to legitimately act in ways that would otherwise be illegal and unconstitutional." : "Both the life and limbs of a man are of ſuch high value, in the eſtimation of the law of England, that it pardons even homicide if committed ſe defendendo, [italics in the original] or in order to preſerve them. For whatever is done by a man, to ſave either life or member, is looked upon as done upon the higheſt neceſſity and compulſion." : "It is alſo true, that the convention-parliament, which reſtored king Charles the ſecond, met above a month before his return;... and that the ſaid parliament ſat till the twenty-ninth of December, full ſeven months after the reſtoration; and enacted many laws, ſeveral of which are ſtill in force. But this was for the neceſſity of the thing, which ſuperſedes all law; for if they had not ſo met, it was morally impoſſible that the kingdom ſhould have been ſettled in peace."
The doctrine of necessity developed from earlier concepts of self-preservation in international law. During the nineteenth century, several writers treated self-preservation as an inherent right of states that could, in exceptional circumstances, justify conduct inconsistent with international obligations. In the course of the International Law Commission's work on the law of State responsibility, necessity was formulated as a distinct circumstance precluding wrongfulness and codified separately from broader theories of self-preservation.
The 1837 Caroline incident is frequently cited in discussions of the historical development of the doctrine. During the Canadian Rebellions, British forces entered United States territory and destroyed the American vessel Caroline, which had been transporting personnel and supplies to Canadian insurgents. In the subsequent diplomatic correspondence, United States Secretary of State Daniel Webster stated that any departure from international law required a necessity that was "instant, overwhelming, leaving no choice of means, and no moment for deliberation". The correspondence between the two governments later became a frequently cited statement of the conditions governing necessity in international law.
The doctrine was subsequently considered in international adjudication. In the Russian Indemnity arbitration (1912), the tribunal accepted that necessity could, in principle, affect the performance of an international obligation where compliance would endanger the existence of the state, although it rejected the plea on the facts of the case. In his separate opinion in Oscar Chinn (1934), Judge Dionisio Anzilotti stated that necessity could excuse the non-observance of an international obligation but concluded that the conditions for invoking it had not been established in that case.
The International Law Commission examined the doctrine during its codification of the law of State responsibility. Its Special Rapporteur, Roberto Ago, proposed draft provisions on circumstances precluding wrongfulness, including necessity. Draft Article 33 was adopted on first reading in 1980. Following further consideration and revision, the provision was adopted as Article 25 of the Articles on Responsibility of States for Internationally Wrongful Acts in 2001.
The International Court of Justice recognised the doctrine in the Gabčíkovo–Nagymaros Project case (1997), holding that necessity is recognised under customary international law as a ground for precluding the wrongfulness of an internationally wrongful act. The Court also stated that the conditions for invoking necessity are exceptional and cumulative. The Court subsequently referred to Article 25 in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004), where it found that the conditions for invoking necessity had not been satisfied.
Examples The doctrine of necessity has been invoked in a number of countries.
Pakistan, 1954 On 24 October 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. The President of the Constituent Assembly, Maulvi Tamizuddin, appealed to the Chief Court of Sindh 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.Judgement and Order of the Chief Court of Sind at Karachi, 9 February 1955, PLD 1955 Sind 96. 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 16 May 1955 it ruled:
The Governor General in certain circumstances had the power to dissolve the Constituent Assembly. 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. The new Assembly (formed under the Constituent Convention Order 1955) would be valid and able to exercise all powers under the Indian Independence Act 1947.PLD 1955 I FC 561-5
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 well-being of the people is the supreme law'.
Grenada, 1985