Necessity Knows No Law

The Doctrine of Necessity
The Doctrine has proved more curse than cure for countries that have been tempted to invoke it. So why does South Sudan join the club?


On the 3rd July 2013, the head of the Egyptian Armed Forces, Gen. Abdul Fattah al-Sisi, with the public backing of several of Egypt’s most influential figures, announced the suspension of the constitution and the dissolution of Mohammed Morsi’s presidency. In its place, the General installed a technocratic government under the leadership of the Chief Justice, Adly Mansour, to steer the country to fresh presidential and parliamentary elections.

In all but name, this was the application of the Doctrine of Necessity. The nation was polarised and on the brink of collapse. Millions took to the streets against a President whom they accused of cynically abusing his slim democratic mandate and systematically dismantling Egypt’s hard won democracy to cement the control of the Muslim brotherhood. The army, which had its own vested interests to maintain, did not hesitate to intervene.

The Doctrine of Necessity can be described by the statement “That which is otherwise not lawful is made lawful by necessity”. It enables state actors (when necessary) to undertake unconstitutional, extra-legal or otherwise invalid actions so as to restore order. At its core lies the ancient roman maxim, “Salus populi suprema lex est” – the wellbeing of the people is the supreme law.

Those who would invoke the Doctrine are driven by the conviction that under a condition of crisis, unresolvable or unanticipated by the constitution and the law, the ends will always justify the means.

The doctrine was first invoked in the Indian sub-continent. In 1955, the then Pakistani Chief Justice, Mohammad Munir passed a ruling that effectively sealed the fate of the democratically elected Constituent Assembly, with whom the Governor-General of Pakistan, Ghulam Mohammed, was allegedly in dispute over the implementation of a new constitution. Munir remarked, whilst giving his ruling, that “necessity knows no law”. It provided the Governor-General with sufficient legal cover to dissolve the assembly and replace it with an appointed (more pliant) Council of Ministers.

A precedent was set which was to have a disruptive influence on Pakistani politics. In 1958 Ayub Khan invoked the Doctrine to impose martial law, take over the government and abrogate the 1956 constitution. In 1978, the Doctrine was used to legalise the military takeover of General Zia Ulhaq and the extra-legal execution of the former Prime Minister, Zulfikar Ali Bhutto in 1979. In 2000, the Doctrine was once again invoked to justify the overthrow of Nawal Shariff’s heavy mandate by General Pervez Musharraf.

In his book, Highways and Byways, Munir admitted that his decision has been viewed “as the starting point of the misfortunes of [Pakistan]”. In 2009, Pakistan introduced a a landmark ruling that many hope has finally laid to rest the Doctrine of Necessity. In a recent speech, Chief Justice Iftikhar Muhammad hailed the ruling noting that it would finally “do away with the arbitrary exercise of authority and abuse of law”.

So how did this Doctrine, much maligned in its modern day country of origin, come to be used in South Sudan four years after it was finally exorcised in Pakistan?

In some respects, the Doctrine of Necessity is not dissimilar to an opiate. Taken under exceptional circumstances, it is an effective painkiller and an invaluable tool of the surgeon. Taken frequently, and it will lead to addiction and ethical degradation.

The Pakistani experience is a testament to addiction. The quixotic Nepalese experience is another example of addiction. In a highly polarised political environment, from 2010, the Doctrine was invoked time and time again to delay – for political expediency – the implementation of a new constitution. Its use in day to day politics became normalised and unexceptional. Nepal developed a political environment where government could make up the rules as it went along. The result, unsurprisingly, was near chaos and deeper polarisation.

But as far as can be seen, the Nigerian experience is an example of effective treatment. In 2010, the Doctrine of Necessity was non-judicially invoked by the Nigerian National Assembly in response to the unprecedented absence of the late President, Umaru Ya’adua, who had been in Saudi Arabia for 78 days receiving medical treatment. He had not (or could not) hand Presidential authority over to his Vice President, Goodluck Johnson, as was provided for in the Nigerian constitution. Subsequently, the business of government was effectively paralysed.

David Mark, Senate President was quoted as saying that “The Doctrine of Necessity requires we do what is necessary when faced with a situation that was not contemplated by the constitution”.

In the interests of national stability, the Assembly acted decisively to end the crisis and used the Doctrine to circumvent constitutional constraints and appoint Goodluck Johnson Acting President and Commander in Chief of the Nigerian armed forces. Their action had the desired effect and the crisis was defused.

Now to the application of the Doctrine of Necessity in the South Sudanese context. We aren’t often afforded the luxury of seeing things in black and white, right and wrong. We are frequently faced with shades of grey or are forced to choose between the lesser of two evils. Taking an absolute position on anything, such as some of the civil advocacy groups have done, runs the risk that it will come into conflict with our common sense.

The former governor of Lakes State, Chol Tong Mayay Jang, was evidently a divisive politician – see the open letter form Cueibet County (Gok Dinka) Community dated 5th January 2012. Some blamed the lawlessness in Lakes state squarely on the shoulders of the Agar Community, who were Mayay’s tribesmen. His inability to reign them in coupled with his perceived ineffective use of SPLA resources, lost the former governor credibility both within and without Lakes state. There was clearly a perception at the highest levels that decisive action was needed to stop the vicious cycle of inter-communal violence threatening to destabilise a state that borders five others.

I haven’t read the 16 page document prepared by the Justice Minister, John Luk, and presented to the Council of States members this June (in fact, I would love to see it if anyone has a copy) so I can’t comment on his justification of the President’s decision to ignore the constitution and extend the tenure of the caretaker governor of Lakes state beyond 60 days. That the justification rested on the Doctrine of Necessity leads one to assume that the legality of the decision was not a factor in its taking.

Sunday Manyang Agok, a resident of Lakes state, in his comment dated 23rd March 2013 – at around the time Governor Dhuol’s constitutional mandate expired – noted that “The Caretaker Governor has shown great potential to handle insecurity in Lakes state and I think he needs more time than what has been indicated in the constitution otherwise conducting election now will exacerbate the insecurity and make the state ungovernable”.

Since his swearing in, Governor Dhuol has introduced firearms licensing. He has introduced a ban on alcohol and has shutdown drinking establishments the length and breadth of the state. He has introduced forceful disarmament in three counties. He has rounded up hundreds of youths in an indiscriminate campaign to clear the roads of thugs and banditry. Without access to data, I am unable to comment on the effectiveness of the caretaker governor’s initiatives. But in the eyes of some of his constituents, the governor has demonstrably reduced instability and lawlessness in their state.

Then again, the caretaker governor’s uncompromising stance and his drive to make Lakes State a dry state hasn’t earned him many friends. Governor Dhuol is openly contemptuous of politicians and of the media. He is eager to foster the ‘strongman’ image and is prepared to ride roughshod over the rule of law, democracy and media freedom. In all this, he believes he has the backing and unshakeable confidence of the President.

In a carefully orchestrated early July rally held in support of the caretaker governor, where students were bussed in and provided with ‘appropriate’ banners (startlingly reminiscent of the northern regime’s ‘spontaneous’ rallies) Governor Dhuol explained that “if you are a son of Lakes state, you are definitely responsible to destroy this state or build it. If you cooperate with me, then we will build it and if you object this rule, then you will be crushed immediately”.

The doctrine of necessity has its evident drawbacks. Necessity is clearly a highly subjective concept, the Doctrine is often perceived as a quick-fix solution and as such becomes an extremely addictive proposition. This can be evidenced by the caretaker governor’s actions since his swearing in. He has judiciously applied the doctrine, in all but name, over and over again.

Time will tell whether the President’s decision was appropriate or whether it needlessly undermined the primacy of the transitional constitution. If I am asked to take a position, I would say that Lakes State continues to be a ‘test bed’ for what dictatorship might look like in South Sudan. It is an experiment that should be studied carefully by all South Sudanese. The rule of law is one decree away from dissolution. Its dissolution will come under a condition of crisis that some will consider unresolvable or unanticipated by the constitution and the law. Its dissolution will be cemented by the support of the military and security services and the blessing of sections of society. And rather depressingly, its dissolution will be akin to a plane of glass – easy to smash and extremely difficult to put back together once shattered.

Necessity, as perceived by those who believe they know how best to secure the wellbeing of the people, knows no laws.


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