258:. The court had been established under an unconstitutional "People's Law" following the overthrow of the country's constitution, which had subsequently been restored. The defendants argued that the court before which they were being tried had no legal existence under the restored constitution, and they were therefore being deprived of their constitutional right to a trial before a "Court established by law". The High Court acknowledged that the lower court "had come into existence in an unconstitutional manner", but "the doctrine of necessity validated its acts." On this basis, the murder trials were allowed to proceed.
195:
because it was never approved of by the
Governor-General, and therefore anything submitted under it was invalid. The Chief Court of Sind ruled in favour of President Tamizuddin and held that the Governor-General's approval was not needed when the Constituent Assembly was acting only as a Constituent Assembly and not as the Federal Legislature. The Federation of Pakistan and the new Council of Ministers then appealed to the court, the appeal was heard in March 1955 (
344:, were questioned about the use of the doctrine of necessity. Fitzmaurice said that necessity is the "most contentious and controversial" of circumstances which allow treaty terms to be disregarded; she stated that using necessity as a justification "should be very carefully considered" seeing as action could instead be taken using Article 16 of the protocol. Bartels suggested that the necessity doctrine could only be used to breach some parts of the protocol.
274:, who for 78 days had been in Saudi Arabia receiving medical treatment, was unable to formally empower the vice president to exercise full powers as acting president, as provided for in Section 145 of the country's constitution. No provision of the Nigerian constitution empowering the National Assembly to pass any such resolution, causing Senate President
207:
Powers to retrospectively validate the Acts of the
Constituent Assembly. An appeal was filed against the Governor-General for invoking emergency powers and the Chief Justice had to determine the constitutionality of invoking the Emergency Powers and whether the Governor-General could give his assent to legislation retroactively.
210:
The Court held that in this case the
Governor-General could not invoke emergency powers because in doing so he validated certain laws that had been invalid because he had not assented to them previously. Justice Munir also ruled that constitutional legislation could not be validated by the Governor
194:
In response, members of the new
Council of Ministers appealed to the court saying that it had no jurisdiction to approve the request of the President to overturn the dissolution and appointments. They argued that Section 223-A of the constitution had never been validly enacted into the Constitution
206:
However, the ground of which the court found in favour of the
Federation of Pakistan called into question the validity of all legislation passed by the Assembly, not to mention the unconstitutionality of the Assembly itself since 1950. To solve this problem, the Governor-General invoked Emergency
202:
In the appeal hearing under Chief
Justice Muhammad Munir, the court decided that the Constituent Assembly functioned as the 'Legislature of the Domain' and that the Governor-General's assent was necessary for all legislation to become law. Therefore, the Chief Court of Sind had no jurisdiction to
328:
said that there was "no legal nor political justification" for the bill and that it was illegal. He also announced that the
Commission would re-open the infringement proceedings against the UK government which had been started in March 2021, including two new counts where it was alleged the UK
49:
is the basis on which extraordinary actions by administrative authority, which are designed to restore order or uphold fundamental constitutional principles, are considered to be lawful even if such an action contravenes established constitution, laws, norms, or conventions. The
313:
conceded that the bill would mean breaching its obligations under international law but said that its position was justified, explicitly invoking the doctrine of necessity and saying that having to uphold the
Protocol was placing unacceptable levels of strain on institutions in
77:. In his judgment, the Chief Justice cited Bracton's maxim, 'that which is otherwise not lawful is made lawful by necessity', thereby providing the label that would come to be attached to the judgment and the doctrine that it was establishing.
80:
The doctrine of necessity may also refer to the necessity of a judge with a reasonable apprehension of bias continuing to decide a matter if there is no alternative to that judge. The
Supreme Court of Canada applied this doctrine in the 1998
627:. YEARBOOK OF THE INTERNATIONAL LAW COMMISSION, volume II, Part Two - Report of the Commission to the General Assembly on the work of its fifty-third session (Report). United Nations. 2001. p. 26. A/CN.4/SER.A/2001/Add.1 (Part 2).
191:, appealed to the Chief Court of Sind at Karachi to restrain the new Council of Ministers from implementing the dissolution and to determine the validity of the appointment of the new Council under Section 223-A of the constitution.
1035:
374:, a legal agreement which addressed concerns around the Northern Ireland Protocol. As a result, the Northern Ireland Protocol Bill was withdrawn and will be allowed to lapse at the end of the current session of parliament.
130:
553:... Dismissing Mirza, army chief General Mohammad Ayub Khan took over first as chief martial law administrator ... a compliant judiciary upheld the imposition of martial law under the doctrine of necessity ...
221:
The
Governor-General has during the interim period the power 'under the common law of civil or state necessity' of retrospectively validating the laws listed in the Schedule to the Emergency Powers ordinance.
1071:
147:
may be suspended under the doctrine of necessity. It is "an exception from illegality and in certain cases even as an exception from responsibility." In order to invoke the doctrine of necessity:
234:
In his verdict, Munir declared it was necessary to go beyond the constitution to what he claimed was the Common Law, to general legal maxims, and to English historical precedent. He relied on
513:, private university students joined the protest, and from there one after another everyone from the society came out and started to join with the fire of the student protesters which
333:
187:
argues that the real reason for the dissolution was because Mohammad objected to the constitution which the Assembly was about to adopt. The President of the Constituent Assembly,
107:
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:
851:
359:, who was the minister responsible for introducing the Protocol Bill, supported it as a method to " the deadlock in a legal way". Although Truss won that leadership election,
348:
486:
938:"Withdrawal Agreement: Commission sends letter of formal notice to the United Kingdom for breach of its obligations under the Protocol on Ireland and Northern Ireland"
266:
A related (although non-judicial) use of the doctrine took place when, on 9 February 2010, the Nigerian National Assembly passed a resolution making Vice President
406:
participated by all layers of people led by the students and fled the country to take shelter in India for the time being. During her absence, The military chief,
469:. Even though there is a long history behind this mass movement, there were a few key turning points during this movement. Especially when a student activist in
254:
invoked the doctrine of necessity to validate the legal existence of a court then trying for murder the persons who had conducted a coup against former leader
211:
General but had to be approved by the Legislature. The lack of a Constituent Assembly did not transfer the Legislature's powers over to the Governor-General.
823:
114:(b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.
364:
20:
514:
462:
434:" anymore after the last amendment and there was no normal transition of power to the next elected government or any mentions of the length of this
594:
395:
490:
435:
360:
430:
the Parliament after a day of the Prime Minister's resignation. Since there was no actual wording in the constitution of Bangladesh called "
379:
1117:
572:
502:
1143:
83:
498:
1148:
270:
the Acting President and Commander in Chief of the Armed Forces. Both chambers of the Assembly passed the resolution after President
1153:
58:, and similar justifications for this kind of extra-legal action have been advanced by more recent legal authorities, including
298:
224:
The new Assembly (formed under the Constituent Convention Order 1955) would be valid and able to exercise all powers under the
737:
545:
411:
403:
183:
and appointed a new Council of Ministers on the grounds that the existing one no longer represented the people of Pakistan.
578:
IV B 10 a: the State's act is to safeguard an essential interest against a peril; b: the peril shall be grave and imminent
39:
973:"Oral evidence: The Scrutiny of International Treaties and other international agreements in the 21st century, HC 214"
310:
180:
506:
760:
341:
910:"Remarks by Vice-President Maroš Šefčovič at the press conference on the Protocol of Ireland / Northern Ireland"
799:
294:
638:
1138:
621:
111:(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
474:
438:, so in this type of extraordinary situation the current interim government is operating under the law of "
301:, which, if enacted, would allow the UK government to unilaterally "disapply" (the word used) parts of the
226:
100:
70:
238:
maxim, 'that which is otherwise not lawful is made lawful by necessity', and the Roman law maxim urged by
418:: বৈষম্যবিরোধী ছাত্র আন্দোলন) coordinators (Gen-Z) demanded to the President to dissolve the Parliament (
306:
144:
140:
370:
The UK government and the European Commission made a joint statement on 27 February 2023 announcing the
909:
184:
278:
to assert that the Senate had been guided by the "doctrine of necessity" in arriving at its decision.
302:
118:
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
937:
423:
325:
154:
Actions taken were the only way to safeguard an essential interest from grave and impending danger.
35:
337:
218:
The Governor General in certain circumstances had the power to dissolve the Constituent Assembly.
164:
122:(a) the international obligation in question excludes the possibility of invoking necessity; or
1112:
697:
Judgement and Order of the Chief Court of Sind at Karachi, 9 February 1955, PLD 1955 Sind 96.
567:
176:
74:
1123:
This article cites many references relevant to the general topic of "doctrine of necessity"
1036:"Political Declaration by the European Commission and the Government of the United Kingdom"
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399:
1004:
8:
942:
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322:
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59:
31:
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541:
451:
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287:
271:
267:
188:
96:
505:
during internet shutdown period, some of the key student activists were arrested or
1083:
982:
745:
672:
510:
415:
315:
235:
55:
27:
878:
778:
478:
736:
Akogun, Kunle; Orji, George; Ojeifo, Sufuyan; Nzeshi, Onwuka (10 February 2010).
622:"E. Draft articles on responsibility of States for internationally wrongful acts"
535:
466:
443:
54:
on which the doctrine is based originated in the writings of the medieval jurist
494:
131:
Draft Articles on the Responsibility of States for Internationally Wrongful Acts
824:"EU poised to take legal action against UK over Northern Ireland protocol bill"
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407:
281:
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66:
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377:
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391:
239:
537:
The post-colonial states of South Asia: democracy, development, and identity
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599:
458:
447:
352:
51:
1111:
Carpentieri, Leonardo (31 March 2022). Fernández Antuña, Antolín (ed.).
1005:"Tory leadership: What candidates think about Northern Ireland Protocol"
566:
Carpentieri, Leonardo (31 March 2022). Fernández Antuña, Antolín (ed.).
261:
715:
684:
482:
387:
275:
151:
The invoking State must not have contributed to the state of necessity,
852:"Johnson ripping up Brexit protocol is 'a new low' says Irish premier"
660:
318:
and that there was "no other way" of safeguarding the UK's interests.
203:
overturn the Governor General's dissolution and it was held as valid.
356:
340:, and Malgosia Fitzmaurice, Professor of Public International Law at
290:
1009:
639:"Case Details - Continental Casualty Company v. Argentine Republic"
533:
426:
to lead the interim government as the chief advisor. The President
336:
on 21 June 2022, Lorand Bartels, Professor of International Law at
214:
The Court was referred to for an opinion. On 16 May 1955 it ruled:
800:"Bill 12–EN 58/3 NORTHERN IRELAND PROTOCOL BILL EXPLANATORY NOTES"
355:
said his preference was a negotiated settlement with the EU while
661:"Constitutional Legitimacy: A Study of the Doctrine of Necessity"
595:"Northern Ireland protocol: what is the 'doctrine of necessity'?"
251:
16:
Exception to laws and norms, usually invoked in grave emergencies
103:(ILC) to be used by a state facing "grave and imminent peril":
1043:
489:" was shot by the police, the government declared a nationwide
69:
validated the extra-constitutional use of emergency powers by
282:
United Kingdom, 2022–2023: Northern Ireland Protocol changes
125:(b) the State has contributed to the situation of necessity.
643:
International Centrey for Settlement of Investment Disputes
450:". Many intellectuals compared this mass movement with The
250:
In a 1985 judgment, the Chief Justice of the High Court of
163:
The doctrine of necessity has been invoked in a number of
334:
Public Administration and Constitutional Affairs Committee
65:
In a controversial 1954 judgment, Pakistani Chief Justice
883:
821:
645:. World Bank. 5 September 2008. ICSID Case No. ARB/03/9.
789:
Updated as the bill progresses, starting 13 June 2022.
735:
534:
Amita Shastri, A. Jeyaratnam Wilson (5 October 2001),
658:
262:
Nigeria, 2010: Parliament creates an Acting President
242:, 'the well-being of the people is the supreme law'.
175:
On 24 October 1954 the Governor-General of Pakistan,
879:"UK reveals plans to ditch parts of EU Brexit deal"
21:
The Doctrine of Philosophical Necessity Illustrated
1072:"The Invocation of Necessity in International Law"
592:
1130:
361:she resigned soon after amid a government crisis
497:vehicles and helicopters used, the countrywide
197:Federation of Pakistan v Maulvi Tamizuddin Khan
26:For other similarly-named legal concepts, see
849:
822:Rowena Mason; Daniel Boffey (13 June 2022).
761:"Nigerian Parliament Names Acting President"
1110:
779:"Northern Ireland Protocol Bill - Timeline"
565:
442:" to reform the country after 15 years of
378:Bangladesh, August 2024: Gono Obbhutthan (
158:
84:Reference re Remuneration of Judges (No 2)
527:
758:
305:that it had signed up to, a part of the
726:. (Sydney: Legal Books, 1990), p. xciv.
520:
477:was killed by the police captured in a
410:took over the control temporarily. the
99:, the exception is allowed by the UN's
1131:
724:Evatt and Forsey on the Reserve Powers
654:
652:
446:ruling of one political party called "
1069:
1030:
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967:
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422:) and wanted the 2006 Nobel laureate
412:Anti-discrimination Students Movement
1076:Netherlands International Law Review
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586:
402:on 5 August 2024 on the cusp of the
386:A new political event took place in
129:Article 25 (Necessity) of the ILC's
90:
649:
481:, another freelancer student named
19:For the philosophical concept, see
13:
1025:
958:
899:
759:Nossiter, Adam (9 February 2010).
593:Aubrey Allegretti (13 June 2022).
321:On 15 June, vice-president of the
14:
1165:
1144:Political terminology in Pakistan
1063:
583:
461:-ers dubbed this revolution as a
170:
143:or an obligation granted under a
1149:Military terminology of Pakistan
286:On 13 June 2022, United Kingdom
245:
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930:
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843:
815:
771:
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398:to the President of Bangladesh
342:Queen Mary University of London
1154:Legal doctrines and principles
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691:
659:Wolf-Phillips, Leslie (1979).
631:
614:
559:
295:Northern Ireland Protocol Bill
1:
850:David Hughes (13 June 2022).
540:, Palgrave Macmillan, 2001,
511:Detective Branch (DB) Police
390:. The former Prime Minister
227:Indian Independence Act 1947
139:Therefore, an obligation of
101:International Law Commission
7:
400:Mohammed Shahabuddin Chuppu
351:during the summer of 2022,
307:Brexit withdrawal agreement
145:bilateral investment treaty
141:customary international law
10:
1170:
25:
18:
1088:10.1017/s0165070x09000953
677:10.1080/01436597908419463
303:Northern Ireland Protocol
1113:"Necessity as a Defence"
568:"Necessity as a Defence"
517:like a virus nationwide
36:Necessity (criminal law)
744:. Abuja. Archived from
349:the leadership election
338:Trinity Hall, Cambridge
329:breached the Protocol.
159:Instances of invocation
137:
1070:Agius, Maria (2009).
738:"Jonathan Takes Over"
665:Third World Quarterly
440:Doctrine of necessity
365:became prime minister
105:
47:doctrine of necessity
1139:Politics of Pakistan
748:on 13 February 2010.
521:Notes and references
432:care take government
332:In a session of the
181:Constituent Assembly
943:European Commission
915:European Commission
706:PLD 1955 I FC 561-5
408:Gen. Waker-uz-Zamam
323:European Commission
1047:. 27 February 2023
765:The New York Times
687:– via JSTOR.
436:interim government
424:Dr. Muhammad Yunus
60:William Blackstone
40:State of necessity
32:Military necessity
857:Belfast Telegraph
547:978-0-312-23852-0
499:internet blackout
463:second liberation
452:French Revolution
372:Windsor Framework
288:Foreign Secretary
268:Goodluck Jonathan
189:Maulvi Tamizuddin
97:international law
91:International law
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179:, dissolved the
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353:Rishi Sunak
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1133:Categories
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485:known by "
483:Mir Mugdho
388:Bangladesh
363:and Sunak
276:David Mark
1118:Jus Mundi
1104:144808236
1096:0165-070X
1082:(2): 95.
573:Jus Mundi
475:Abu Sayed
428:dissolved
357:Liz Truss
291:Liz Truss
236:Bracton's
1010:BBC News
507:detained
127:—
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