In times of crisis or emergency, governments may find themselves in situations where normal legal procedures and constitutional provisions become impractical. This is where the Doctrine of Necessity comes into play. But what exactly does this doctrine mean, and when can it justify actions that might otherwise be unconstitutional? Let’s dive into the essence of this legal principle.
Doctrine of Necessity; is a legal principle that allows governments to take actions that may be considered unconstitutional (i.e., against the law) in response to crises or emergencies. In simpler terms, it permits extraordinary actions under extreme circumstances that are necessary for the survival of the state or the wellbeing of the people.
However, it’s important to note that the Doctrine of Necessity is not explicitly mentioned in any constitution. Instead, it finds its roots in constitutional and administrative law. It is guided by the Latin maxim:
Necessitas non habet legem “Necessity knows no law.”
Additionally, it is framed by the principle:
Salus populi suprema lex esto — “The welfare of the people shall be the supreme law.”
This principle essentially means that, in extraordinary situations, the government is allowed to take actions that may override constitutional provisions, provided such actions are necessary for governance and the survival of the nation.
Think about it like this:Just as Jesus Christ said in Mark 2:27, “The Sabbath was made for man, not man for the Sabbath,” we can apply a similar sentiment to the law: the law is made for man, not man for the law. This makes the essence of the Doctrine of Necessity more understandable — law should serve people, and in certain crises, the law must be flexible to serve the greater good.
Doctrine of necessity case law
Let’s examine how courts have applied the Doctrine of Necessity in various landmark cases
The State v. Dosso (1958) – Pakistan
In this significant case, the Supreme Court of Pakistan, led by Chief Justice Muhammad Munir, upheld a military coup, ruling that a successful revolution or coup could become a legitimate means of altering the legal order during a time of necessity.This controversial decision was later criticized for legitimizing military rule under the guise of necessity, raising concerns about the potential abuse of power.
Madzimbamuto v. Lardner-Burke (1969) – Rhodesia (Now Zimbabwe)
In stark contrast to the Dosso case, the Privy Council in this matter rejected the Doctrine of Necessity. The court held that an unlawful government could not justify its actions solely based on the claim of necessity. This decision emphasized the limits of the doctrine, especially when used to legitimize unconstitutional actions.
Lakanmi v. A.G. Western Nigeria (1971) – Nigeria
In this case, following the 1966 military coup in Nigeria, the government passed decrees enabling the seizure of property from individuals accused of corruption. One such individual, Lakanmi, had her assets seized and challenged the action in court.
Legal Issues before the court were
_Wether the military government have the authority to confiscate private property via decree?
_Can the Doctrine of Necessity justify these actions?
_Was the decision of the military tribunal lawful?
The Supreme Court’s Decision in Lakanmi v. A.G. Western Nigeria (1971) Nigeria held the following:
_The military government cannot override the Constitution, even in an emergency.
_The Doctrine of Necessity cannot justify actions like property confiscation without due process.
_Military decrees must respect fundamental rights.
This very case no doubt clearly demonstrated that the Doctrine of Necessity has limits and cannot be used as a blanket justification for unlawful actions. Now take note of this:
Conditions for the Doctrine of Necessity to Apply
For the Doctrine of Necessity to be invoked, certain conditions must be met:
1.Existence of an Emergency or Crisis
There must be a clear constitutional breakdown, war, or governance paralysis.Example: In 2010, Nigeria’s National Assembly invoked the doctrine when President Umaru Musa Yar’Adua was incapacitated due to illness, allowing the Vice President to assume presidential powers temporarily.
2. No Legal Alternative Available.
The action taken must be the only reasonable solution in the face of the crisis.Example: In the Lakanmi case, the court rejected the use of the doctrine because there were other lawful means available to the government.
3.Proportionality – The Action Must Be Temporary.
The measures taken must be necessary and should not exceed what is required to resolve the crisis.
Example: Military coups tend to fail this test, as they often retain power indefinitely rather than acting temporarily to address the crisis.
What Every Constitutional Law Student Should Know About this Doctrine
As a constitutional law student, it is essential to:
_Demonstrate a clear understanding of the Doctrine of Necessity.
_Cite relevant case law that shows when the doctrine has been applied and when it has been rejected.
Conclusion
The Doctrine of Necessity is a powerful legal tool that justifies extraordinary measures in times of crisis. However, its application is not without limits. Courts have consistently emphasized that, while the law can bend in times of need, it cannot break there are clear boundaries that must not be crossed in the name of necessity. Understanding these boundaries is crucial, especially for those studying constitutional law.
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