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Our View: Using the law of necessity only when it suits

THE SUPREME court cited the law of necessity in rejecting the motions by the attorney-general seeking the recusal of several judges from the appeal by the state against the administrative court’s ruling the pay cuts to civil servants’ salaries and pensions unconstitutional. Under the law of necessity, it was permissible even for judges that had a direct financial interest in the case to participate in the full bench of the supreme court, if no other court could be put together to rule on the case, said the ruling.

The attorney-general had argued that judges on the supreme court who had taken legal action against the state for cuts to their allowances, and others whose spouses were civil servants and stood to benefit financially from a rejection of the appeal, should have recused themselves. It was a perfectly reasonable motion, but this posed another problem – the full bench of the supreme court is made up of 13 judges and there are only 13 supreme court judges, so if some judges were recused there would be no full bench.

An appeal on a key constitutional issue had to be heard by the full bench in order to provide a conclusive solution, said the supreme court, explaining that if all the recusal requests were accepted it would not even be able to put together a three-member appellate court. Therefore, the law of necessity had to be applied, allowing judges with an interest in the case to be part of the full bench of the supreme court.

The law of necessity, in effect, means ignoring provisions of the Constitution and has been cited in countless cases in the past. It is therefore mind-boggling that nobody thought about citing the law of necessity to defend the cuts to pensions and wages by the state. Surely, with the state on the brink of bankruptcy, the law of necessity justified wages and pensions of state employees being cut. It is a big paradox that the law of necessity could be cited to allow judges with a direct interest in the outcome of an appeal to be part of the full bench of the supreme court, but when it comes to the state cutting wages and pensions in order to avoid looming bankruptcy the law of necessity is completely ignored.

Then again, how could we expect consistency from a supreme court which ruled that cutting pensions was a violation of article 23 of the Constitution which protected the right to property? The law of necessity was not cited in this case either.


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