Doctrine Of Necessity

This is a principle where a normal criminal act
can be justified by the necessity of preserving something of greater utilitarian value than that lost or sacrificed. The doctrine of necessity might lead a court to approve a doctor’s decision to perform an illegal, third-trimester abortion in order to save the mothers’s life.
The Doctrine of  Necessity is a rarely used political concept, that 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 constitution, the rule of law, the government and democracy in the long term.
The doctrine of necessity was first invoked in 1954 in Pakistan, where the Pakistani Supreme Court gave legal support to the extra judicial action of the country’s Governor-General who used extra constitutional means 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 Pakistan 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”. It is on the premise of this maxim that on the 9th of February 2010 the doctrine was invoked in Nigeria to also justify extra-legal actions where the National Assembly passed a resolution making Vice President Goodluck Jonathan (as he then was) the Acting President and Commander in Chief of the Armed Forces.
Both chambers of the Assembly passed the resolution after President Umaru Yar’Adua, who for 78days had been in Saudi Arabia receiving medical treatment, refused to formally empower the vice president to exercise full powers as acting president as provided for in section 145 of the 1999 constitution of the Federal Republic of Nigeria. It is worthy to note that provision of the constitution empowered the National Assembly to pass such resolution. But the Senate President David Mark asserted that the Senate had been guided by the “Doctrine of Necessity” in arriving at its decision.

Nkechi Bright-Ewere