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Constitutionalism confused : The doctrine of necessity vs Kelsen's pure theory by Dr. Lakshman Marasinghe, Emeritus Professor of Law, University of Windsor, Windsor, Ontario, Canada, and Visiting Professor of Law, University of Colombo Recently, I have noticed that the news media have carried a number of printed expositions regarding the legitimisation of constitutions born out of extra constitutional means. This welter of views have focussed on two bases of constitutional jurisprudence upon which they validity of autochthonous, or home grown constitutions, may be legitimised. There have been two possible bases that have recently been suggested. One is the Doctrine of necessity and the other is the pure theory of Kelsen. What I have found a little disturbing was that these two theories have been proposed as if they traversed the same terrain and were somehow interchangeable. In fact this is not the case. It was unfortunate in many senses of that the legal concept of the doctrine of necessity had first arisen as a part of legal literature by way of an unsuccessful defence to a criminal prosecution for murder accompanied with cannibalism. In Dudley vs Stephens (1884) 14 QBD 273, the crew of the yacht Mignonette were cast away in a storm, 1,000 miles away from land. Within four days of their possible death due to hunger the two accused killed the cabin boy and fed upon his flesh to stay alive. When charged with murder, the accused pleaded the defence of necessity. Necessitous conduct here was to preserve life of the two accused. The court rejected this defence, found the accused guilty of both murder and cannibalism and sentenced both accused to death. This aspect of the defence of necessity has no relevance to the doctrine of necessity which is now being widely discussed with reference to constitutional jurisprudence. The two applications in the criminal law and in constitutional law are like 'chalk and cheese', both may be white but very different concepts. Similarly, 'necessity', in the criminal law and in constitutional law are two different concepts. In one, it is a defence to 'actus reus', the criminalising act, and in the other it is a justification for acting under a legislation which had been enacted in violation of a constitutional provision. In other words unconstitutionally. In constitutional law 'necessity' does not justify replacing one constitution with another. It merely justifies acts done or proceedings taken under legislations passed in violation of a constitutional provision. The justification is based on the necessitous circumstance that had arisen. It does not make such legislation valid and legal. It only justifies the enforcement of an otherwise invalid and unlawful law. The case law is clear on this point. The beginnings of the application of the doctrine of necessity in constitutional law may be seen in the judgement of the Court of Appeal in 1964. That was in The A-G for Cyprus vs Mustafa Ibrahim & others (1964) Cyprus Law Reports 195. There Mustafa was detained under the Administration of Justice (Miscellaneous Provisions) Law of 1964. That law had been passed in the Cyprus parliament during a boycott of the parliament by the Turkish minority. The latter did not take any part in the proceedings and neither did they vote for or against the Bill. The constitution of Cyprus required that when legislating on 'general affairs', as it was the case here, both the Turkish and Greek members of parliament should together form the quorum. The absence of the Turkish members therefore denied parliament of the quorum. Accordingly the Law of 1964 was passed with only Greek members of parliament being present. The Law therefore was unconstitutional. Mustafa challenged the constitutionality of his detention. The State argued that the boycott of parliament constituted a 'legislative paralysis'. Therefore the first constitution of Cyprus had now been replaced by a new constitution. Under the new constitution, laws could now be validly passed with only the Greek members participating and that they alone shall hitherto form the quorum. In other words, the State argued in favour of a Kelsenite revolution which had annulled the first constitution which had now been replaced with a new constitution. In this new constitution, the State argued, that the Greek members of parliament would by themselves constitute a valid quorum, thus excluding the requirement of Turkish participation. The court refused to accept that the first constitution had been replaced in a changed form, in order to accommodate the boycott of parliament by the Turkish members. Instead the court held that due to the boycott of parliament there had been an impossibility to legislate in accordance with the first constitution, and therefore there is a necessity to legislate in the amended form until the boycott of parliament is terminated. This is a temporary measure, and shall continue so long as the necessitating conditions persists. The court observed that; ...with the doctrine of necessity, in this well balanced form, I reach the conclusion that in the conditions prevailing at the material time, the enactment of the... Law was legally justified, notwithstanding the provisions of Articles... of the Constitution (214-215). There are a number of decisions globally that have expounded the principles that underpin this doctrine of necessity. Explaining the nature and the character of this doctrine, the Supreme Court of Canada, observed that: ...at a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make counsel of patience unreasonable" (Mogentaler v R - (1976) 20 ccc 449 at page 497). However, it was in Asma Jilani v The Government of West Punjab - (1974) 24 P.L.D. 139 - that the correct appreciation of this doctrine was judicially noticed. Their Yakub Ali J., explained that the constitution is not affected by this doctrine. What is affected is the legislation passed in contravention of the constitution. The legislation that parliament had passed in contravention of the constitution: will always remain invalid, but acts done and proceedings undertaken under such invalid laws may be condoned on the condition that the recognition given by the Court is proportionate to the evil to be averted, it is transitory and temporary in character - does not imply the abdication of judicial review. (Ibid., at page 239) In a number of subsequent decisions (Inter alia, Mitchell v The Director of Public Prosecutions (1986) 1 A.C. 645 in the Privy Council, Mokotso v The King (1989) L.R.C. (Const) 23, Makente vs Lekhanya and others (1993) 3 L.R.C (13) the parameters laid down in Asma Jilani (1974 were followed. In the celebrated decision of the Nigerian Supreme Court in Lakanmi and Ola v the Attorney-General for the Western Province (1971 Vol. 20 ICLQ 117) the court was invited to hold that the military takeover of the administration of the Republic of Nigeria by General Yakubu Gowan on the 26th of January, 1966 did annul the Federal Constitution of Nigeria in the Kelsenian sense. The effect of such an annulment being that it would have replaced the executive power vested in the President of Nigeria under that Constitution, with the Supreme Military Council of which its President was the Coup leader - Gowan. The court held that there was no such annulment of the Federal Constitution followed by its replacement. There was merely an impossibility for the Civil Administration to govern due to the breakdown of law and order in the country as a result of the assassination, among others, of the Prime Minister (Sir Tafawa Balewa) and the leader of the Northerners, (The Sordano of Sokoto). Once the peril has been crushed and the Republic is returned to normaly the undertaking of the Military Administration was to return the Administration to the Civilian government which had only been temporarily replaced. Ademola C.J. wrote: "From the facts of the taking over, as we have pointed out, The Federal Military Government is an interim government of necessity concerned with the political cauldron of its inception as a means of dealing effectively with the situation which has arisen... (SC 58/59). A Collation of the forgoing case law has arrived at the following propositions: 1. "An imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital functions of the State; 2. There must be no other course of action reasonably available; 3. Any such action must be reasonably necessary in the interest of peace, order, and good government; but it must not be more than is necessary or legislate beyond that; 4. It must not impair the just rights of citizens under the Constitution; 5. It must not be one the sole effect and intention of which is to consolidate or strengthen the (change) as such". (Haynes P., in Mitchell vs D.P.P. [1086 L.R.C. 35 at pages 88-89 - the court collated these five points from the aforementioned decisions). 6. The doctrine does not affect the constitution. The constitution remains in force. The doctrine merely provides a defence for acting under laws passed contrary to the provisions of the constitution when "the evil inflicted by such departure must be less than the evil avoided by such a departure. (Yakub Ali J., in Asma Jilani (1974) 24 P.L.D 139 at page 239). 7. This allows for Judicial Review of each departure with reference to the formula stated in the previous paragraph. (Ibid) Kelsen's Theory of the Grundnorm. Professor Hans Kelsen's principal contribution to constitutional law springs from that part of his legal theory which deals with his views on the Grundnorm. The validity of the Grundnorm is presupposed if it is proved to be efficacious. It remains both valid and legitimate so long as it remains efficacious. The troubling aspect of Kelsen's thesis is both the Grundnorm and its "efficacy". There is no need for the Grundnorm to be the same in every legal system. The validity or the legitimacy of the Grundnorm is based on efficacy, and so long as the Grundnorm remains efficacious, it imparts to the rest of the normative structure (which is comprised the legal system), its own legitimacy. Thus the Grundnorm is the source that makes the rest of the legal system valid. Arising out of the fact that the validity of the Grundnorm is founded upon efficacy, which Kelsen explains as minimum support, then if such support is to cease depriving the Grundnorm of its efficacy, the Grundnorm ceases to be valid together with the legal system. Kelsen does not consider it necessary to find efficacy on any extraneous factor such as consent. Efficacy is a fact that is to be experienced by the legal system. The efficacy imparting source for Kelsen may be through a consenting ballot or through a compulsive bullet. The fact of efficacy is his primordial factor for a valid Grundnorm, and therefore for a valid legal system. This may be the result of it being replaced by a new Grundnorm, and such a change for Kelsen may occur through constitutional or extra-constitutional change, administered to the Grundnorm. Kelsen's primary and perhaps his only focus, is where there has been an extra-constitutional change. This is commonly referred to in Jurisprudence as a legal revolution. It is to this proposition that Sir Mohammed Munir C.J. made reference in The State vs Dosso (1958) 2 PSCR 180). He wrote: "It sometimes happens, however that a Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the national legal order ... For the purpose of the doctrine here explained (i.e. Kelsen) a change is, in law, a revolution, if it annuls the constitution and the annulment is effective ... Thus a victorious revolution or a successful coup d'etat is an internationally recognised legal method of changing a constitution." (Ibid., pp 184-185). There are a number of decisions in various Commonwealth courts which have expounded this principle of efficacy (Inter alia, Madzimbamuto vs Lardner-Burke (1969) 1 A.C. 645; The State of Pakistan vs Bhutto (1958) 2 PSCR 180; Valabhaji The Controller of Taxes (1981) Commonwealth Law Bulletien 1249) The basic difference between the doctrine of necessity and Kelsen is that in the former the constitution remains unaffected. The doctrine merely permits the State apparatus to act and implement laws passed in contravention of the constitution. These acts performed shall always remain illegal but the State apparatus may justify each of those illegal acts upon the necessitous circumstance that had arisen. The justification is based upon the application of the utilitarian formula which Yakub Ali J. in Asma Jilani had formulated, to which reference had previously being made. In Kelsen the constitution is not preserved. It is annulled, and a new Grundnorm is established. It is established when the new Grundnorm becomes efficacious. The ultimate test of efficacy is when the courts accept the new Grundnorm as the basis for the validation of the legal system according to which judgements and orders are thereafter issued, and when those judgements and orders are duly executed by the executive arm of government. At that point the new Grundnorm has been established in law, as the new basic law of the land, and efficacy of the new Grundnorm has thus being established. Archion Ndhlovu and others v The Queen, - Case No. 138/68/AD/decided on September 13, 1968. This is reported in part in Vol. 20, ICLQ at pages 671 - 672). |
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