Conditions needed to invoke ‘doctrine of necessity’ have not materialized in the context of Guyana

Dear Editor,

I have read with great interest, Mr Ram’s letter (Stabroek News, 27/2/19), `Ramjattan cited doctrine of necessity to justify failure of Administration to comply with No Confidence Motion’. Besides the comments on point in the letter, I have heard some of Ramjattan’s assertions on the doctrine and concluded that Ramjattan’s aim was to distort the concept to suit his political interest. I must say, however, that even courts across the world have had to grapple with the doctrine of necessity, and have faced difficulty in imposing strict compliance with the law while at the same time recognising political reality and the risk to public order and safety.

The conditions that support the ‘doctrine of necessity’ were laid down by Haynes P of the Court of Appeal of Grenada in Mitchell v Director of Public Prosecutions [1986] LRC (Const) 35, 889 (Haynes P) as follows:

(i) 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 function to the State;

(ii) there must be no other course of action reasonably available;

(iii) any such action must be reasonably necessary in the interest of peace, order and good government; but it must not do more than is necessary or legislate beyond that;

(iv) it must not impair the just rights of citizens under the Constitution;

(v) it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such.

With regards to the constitution, the Court of Appeal in Republic of Fiji v Prasad [2001] NZAR 385, noted that there were limited circumstances in which there may be a departure from, or suspension of, the Constitution to deal with an emergency for the purposes of preserving the rule of law and maintaining order. Earlier that year, the Fiji High Court in Prasad v Republic of Fiji [2001] NZAR 21, Gates J stated that “The Constitution’s very indestructibility is part of its strength. [No man has the authority to tear up the Constitution.] The Constitution remains in place until amended by Parliament …. [and] may only be changed in accordance with that Constitution. The Constitution provides for its own mutation. Usurpers may take over as they have in other jurisdictions, and in some cases rule for many years apparently outside of, or without the Constitution. Eventually the original order has to be revisited, and the Constitution resurfaces…. Even the Glorious Revolution must eventually be tamed by the Constitution. For the courts cannot pronounce lawfulness based simply on the will of the majority. Nor can lawfulness be accorded to the tyranny of the mob. … Such tyranny lacks universal morality and the courts will not assist usurpers simply because they are numerous, powerful, or even popular.”

In essence, the conditions needed to invoke the “doctrine of necessity” have not materialized in the context of Guyana, nor is there any potent condition that warrants the Gov’t’s departure from constitutional provisions. Mr Ramjattan’s notion of “necessity” therefore hints at redefining the concept to suit APNU+AFC interests, or rests on a false premise.

Yours faithfully,

Ronald Singh