Doctrine of Necessity: Stumbling Against the Same Stone in Pakistan - A Mistake Not to be Emulated in Sri Lanka

20 Pages Posted: 13 May 2020

Date Written: May 12, 2020

Abstract

The doctrine of necessity was first expounded as a criminal law principle: ‘that which is otherwise not lawful is made lawful by necessity’. Dangers of applying the doctrine in constitutional law were seen in Pakistan where several military coups were validated using it.

In Sri Lanka Parliament was dissolved on 02 March 2020. As elections have been postponed due to the COVID-19 pandemic, Parliament will not be able to meet before 02 June, within the maximum period of three months permitted by the Constitution for the country to be governed without Parliament. 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.

The dissolved Parliament can be recalled in several ways: (1) withdrawal of the Proclamation of dissolution; (2) declaration of an emergency under the Public Security Ordinance which will trigger the summoning of Parliament; and (3) summoning of Parliament by the President without recourse to the said Ordinance in an emergency. That there is an emergency situation today cannot be denied.

However, it has been suggested that the country can go on without Parliament by invoking the doctrine of necessity. This paper argues that where there are alternatives possible under the Constitution, the doctrine cannot be invoked. In any case, learning from the Pakistani experience, Sri Lanka should not use the doctrine in matters of constitutional law.

Keywords: doctrine of necessity, Pakistan, Sri Lanka

Suggested Citation

Wickramaratne, Jayampathy, Doctrine of Necessity: Stumbling Against the Same Stone in Pakistan - A Mistake Not to be Emulated in Sri Lanka (May 12, 2020). Available at SSRN: https://ssrn.com/abstract=3598986 or http://dx.doi.org/10.2139/ssrn.3598986

Jayampathy Wickramaratne (Contact Author)

Independent ( email )

No Address Available
Sri Lanka

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