Applicability of the Doctrine of Necessity in Constitutional Law
(A Comparative Study (Jordan, Egypt, France))
الملخص
This research sheds light on applying the doctrine of necessity in constitutional law through a comparative study (Jordan, Egypt, and France). The study concludes that the doctrine of necessity necessitates the departure of the executive branch from the principle of constitutional legitimacy towards an exceptional power which allows it to temporarily legislate to confront emergencies or crises faced by the State, including imminent perils. The study argues that dealing with such matters cannot tolerate any delay and that the doctrine of necessity is constitutionally legitimate. The state of necessity is given legitimacy by being applied in the face of unusual circumstances the State encounters. It involves the constitutional authorities taking necessary legal measures to confront perils and extraordinary circumstances encountered by the State. It also involves granting the executive branch the power to enact laws. The Jordanian constitutional legislature did not explicitly address the grave peril but referred to the occurrence of serious emergencies, events, or unforeseen dangers under Articles 124 or 125 of the Jordanian Constitution of 1952 and its amendments. Most constitutional legislation adopted the doctrine of necessity explicitly, setting guidelines and conditions to ensure the executive branch does not misuse it and remains within the scope of adopting this doctrine. However, the Jordanian constitutional legislature did not determine matters requiring confrontation for the enactment of provisional laws, as stated in Article 94 of the Jordanian Constitution, such as public disasters, so the text is general in a way that allows interpretation by the executive branch with jurisdiction to determine and assess the occurrence of a state of necessity. The constitutional legislature overlooked the oversight role of the Jordanian Parliament, whether in session or dissolved when declaring a state of necessity and imposing martial law by royal decree and Council of Ministers decision.
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