My article, ‘Necessity: Doctrine That Destroyed Pakistani Democracy’ published in The Island on 08 May has evoked interest in the subject and I have been asked for my views on its implications for Sri Lanka, including on whether it can be invoked in the present circumstances.
For the benefit of readers who have not read my earlier article, let me say that according to the doctrine of necessity, first expounded as a criminal law principle, ‘that which is otherwise not lawful is made lawful by necessity’. We have seen the doctrine of necessity being used to destroy democracy in our neighbourhood, in Pakistan. Chief Justice Munir who first invoked the doctrine in 1954 has been described as the ‘destroyer of Pakistan’. A senior Pakistani lawyer who read my article wrote to me to say that years later, Munir clarified in a lecture at the Lahore High Court that holding against the Governor General would have entailed enforceability issues and caused bloodshed. In his book ‘From Jinnah to Zia’ published in 1979, Munir does not utter a word about his infamous judgements or about the doctrine, probably out of remorse. After several decades, and military coups which were validated using the doctrine, the Supreme Court, in Syed Yusuf Raza Gilani, Prime Minister’s case, refused to resurrect ‘the malignant doctrine of necessity which has already been buried, because of the valiant struggle of the people of Pakistan.’ I wish to correct a mistake in my earlier article; the date of the Gilani judgement is 19 June 2012, not 19 June 2019.
The doctrine has come up for discussion in Sri Lanka due to the postponement of Parliamentary elections due to the Covid-19 pandemic.
[title]Relevant constitutional provisions[/title]
The Nineteenth Amendment of 2015 reduced the term of Parliament from six years to five. Also, Parliament can be dissolved by the President during the first four and a half years only if Parliament so requests by a two-thirds majority. The last Parliament met for the first time on 01 September 2015, which meant that its term would end on 01 September 2020 and that the President could dissolve Parliament on his own only after 01 March 2020. President Gotabhaya Rajapakse dissolved Parliament on 02 March 2020. The general election was fixed for 24 April and the new Parliament summoned to meet on 02 June. After nominations were received on 19 March, the Election Commission postponed the election without a date being fixed. Later, the election was fixed for 20 June but it is very likely that it would be postponed again. Thus, Parliament will not be able to meet on 02 June as scheduled.
An issue that arises is that Sri Lanka would be without a Parliament for more than three months, the maximum period that the Constitution permits the country to function without it. Most importantly, by virtue of Articles 3 and 4 of the Constitution, Parliament is one manner of the exercise of the Sovereignty of the People. Parliament is not only a legislative body; it is the institution to which the President is accountable. Article 33A, inserted by the Nineteenth Amendment, reads: ‘The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security.’ Parliament also has an important oversight function. The Finance Committee, the Committee on Public Accounts (COPA), the Committee on Public Enterprises (COPE) and the various Parliamentary Oversight Committees discharge important functions in that regard.
Under Article 148, Parliament shall have full control over public finance. No tax, rate or any other levy shall be imposed by any local authority or any other public authority, except by or under the authority of a law passed by Parliament or of any existing law.
Questions have been raised about the constitutionality of the withdrawal monies from the Consolidated Fund without Parliamentary sanction and how the Government can continue to raise loans without the debt ceiling being raised by Parliament.
[title]The constitutional importance of Parliament[/title]
A useful purpose that can be achieved by summoning Parliament is making amendments to existing laws or enacting new laws to meet the extra-ordinary circumstances that have arisen. Take the example of the use of indelible ink at the election. The Election Commission has been considering the use of an alternative because of health concerns. Making a mark using indelible ink is a pre-condition for the issue of a ballot paper under section 38 of the Parliamentary Elections Act. Advance voting has also been mooted. All this would require amendments to the Act.
The most serious issue that arises from the present situation is that Sri Lanka would be governed without Parliament over and above the three-month period permitted by the Constitution. Parliament is one of the three pillars of government, indispensable for democratic governance, and on which the Sri Lankan State rests. The second is the Executive.
The third pillar, the judiciary, has been described as the weakest branch of government and that is no affront to that great institution. The judiciary’s role is limited; it cannot act on its own; its jurisdiction has to be invoked; decisions take time. Its advisory jurisdiction can be invoked only by the President and the Secretary to the President has made it clear that no advice will be sought. Even if sought, the Court can only answer the questions referred to it. The Court would not wish to give unsolicited advice.
The country being governed without Parliament means in effect that it would be governed only by the President, without the institution to which the he is constitutionally accountable functioning.
[title]Invoking the doctrine in constitutional law[/title]
Pro-government lawyers have been heard to say that the doctrine of necessity permits governance without Parliament. Elections have been postponed for reasons beyond anyone’s control and it is because of that, that Parliament cannot meet within three months of dissolution. So, it is argued, we can go on without Parliament on the basis of the doctrine of necessity.
In last Friday’s article, I quoted Stavsky from his paper on ‘The Doctrine of State Necessity in Pakistan’ warning against the dangers of the doctrine’s application in constitutional law, the legitimacy of readjusting fundamental political, social, and legal values, its effects on individual rights and changes in the governmental structure.
In Madzimbamuto v. Lardner‑Burke and another ((1968) 3 A E R 561), the Privy Council refused to validate the Smith regime in Rhodesia using the doctrine of necessity. Lord Pearce, who dissented, did not give a carte blanche for the use of the doctrine, but imposed three limitations for the validation of the impugned acts: ‘(1) so far as they are directed to and reasonably required, for ordinary orderly running of the State; (2) so far as they do not impair the rights of citizens under the lawful Constitution; and (3) so far as they are not intended to and do not in fact directly help the usurpation and do not run contrary to the policy of the lawful Sovereign.’
‘Necessity’ envisages a situation in which there is a clear and present danger that requires immediate action and there is no alternative but to prevent the danger by doing an act which is otherwise illegal. The illustration in section 74 of our Penal Code which I cited in my earlier article is apt: in a great fire, pulling down houses in order to prevent the conflagration from spreading. However, the act done must not cause more mischief than the mischief sought to be avoided.
[title]Existence of alternatives[/title]
One sure way of avoiding governance without Parliament is to withdraw the Proclamation of dissolution made on 02 March. This would allow Parliament to resume and go on till 01 September 2020 and the general election to be held in late November. It can be dissolved earlier if the situation improves. The Government appears determined not to do that. One reason is that nominations accepted would be annulled. The Government fears that the two factions of the UNP would then get together for the elections. However, the nominations received can be still be validated for the elections through a constitutional amendment that is applicable to the forthcoming general election only. This would be the best course of action but I concede that getting the parties to agree on this will be difficult. However, it is not impossible.
The other way out is to summon the dissolved Parliament. This can be done in one of two ways. If a Proclamation is made under the Public Security Ordinance (‘declaration of emergency’) when Parliament has been dissolved, Article 155 (4) (1) triggers off the summoning of Parliament. The Proclamation would have to be approved by Parliament. If the President does not wish to use the Public Security Ordinance, he can use Article 70 (7) under which the President can summon Parliament in an emergency. That there is an emergency situation today cannot be denied.
[alert type=”success or warning or info or danger”]‘Why should Parliament be summoned?’, the question has been asked. The simple answer from a constitutional law perspective is that to govern for more than three months without Parliament violates the sovereignty of the People. People may have a very negative view about the quality of Parliamentarians that they themselves elect. But, as has been pointed out, over 200 of the 225 members of the last Parliament have been nominated again and at least 150 of them are likely to be in the next Parliament. What is important is the institution of Parliament, not the quality of its members who the People elect in the exercise of their franchise.[/alert]
The doctrine of necessity is invoked when an illegal act is condoned to prevent greater mischief. Applying the doctrine to the present, the illegality sought to be cured is governance without Parliament over the constitutionally permissible period. Then, what is the greater mischief? Is recalling Parliament greater harm as far as the Constitution is concerned? Is the argument that ‘the former Parliament is a dead Parliament’ or ‘none of the 225 MPs do not deserve to be in Parliament’ a constitutionally acceptable argument?
It has been argued that to summon Parliament is a matter for the President to be done in his discretion. That ‘there is no unfettered discretion in public law’ is an accepted constitutional principle. I wish to quote from a recent case, in a long line of similar cases, Nethsinghe v Ratnasiri Wickremanayake (SC FR 770/1999), where Justice Eva Wanasundera, with Justices Aluwihare and Chitrasiri agreeing, stated that our Supreme Court has ‘specifically rejected the notion of unfettered discretion given to those who are empowered to act in such capacity and held that discretions are conferred on public functionaries in trust for the public, to be used for the good of the public, and propriety of the exercise of such discretions is to be judged by reference to the purposes for which they were so entrusted.’ It follows that as much as it is unconstitutional to exercise a discretion unfairly, it is unconstitutional for an authority to refuse to exercise a discretion when the necessity has arisen to do so.
The basis of the argument in favour of the use of the doctrine of necessity is that an extra-ordinary situation not envisaged has arisen. It is in such extra-ordinary circumstances that Article 70 (7) must necessarily be used. One cannot say that there is an unforeseen emergency for the doctrine to be invoked and, in the same breath, argue that there is no emergency for the purpose of Article 70 (7).
It will thus be seen that there is a clear and perfectly constitutional way out of the crisis, namely the summoning of Parliament. When the Constitution allows Parliament to be summoned, the doctrine of necessity cannot be invoked to govern the country without Parliament. As Sherlock Holmes would have asked Dr. Watson, isn’t this elementary?
The doctrine of necessity is not a panacea for all ills, not a ‘kokatath thailaya’. After disastrous consequences of its use, the doctrine has been buried in Pakistan. Let us not bring the corpse and resuscitate it in Sri Lanka.